'   LIBRARY    ^ 

UNIVERSITY  OF 
CALIFORNIA 

SAN  DIEGO 


Constitutional  Conflict 

IN 

Provincial  Massachusetts 


A  Study  of  Some   Phases  of  the  Opposition 

Between  THE  Massachusetts  Governor 

AND  General  Court  in  the  Early 

Eighteenth  Century 


By 
HENRY    RUSSELL    SPENCER 


SUBMITTED   IN   PARTIAL   FULnLMENT  OF  THE    REQUIREMENTS 

FOR    THE    DEGREE   OF   DOCTOR   OF    PHILOSOPHY 

IN   THE 

FACULTY   OF   POLITICAL   SCIENCE 

COLUMBIA    UNIVERSITY 


COLUMBUS,    OHIO 

Press  of  Fred.  J.  Heer 


Constitutional  Conflict 


IN 


Provincial  Massachusetts 


A   Study  of   Some   Phases   of  the   Opposition, 

Between  the  Massachusetts  Governor. 

AND  General  Court  in  the  Early 

Eighteenth  Century 


By 
HENRY    RUSSELL    SPENCER 


SUBMITTED    IN    PARTIAL    FULFILMENT   OF   THE    REQUIREMENTS 

FOR    THE    DfEGREE    OF   DOCTOR    OF   PHILOSOPHY 

IN    THE 

FACULTY    OF    POLITICAL    SCIENCE 

COLUMBIA    UNIVERSITY 


COLUMBUS,    OHIO 

Press  of  Fred.  J.  Heer 

1905 


JK 

5C 

it 


CONTENTS. 

Chapter       I.     Antagonistic    Colonial   Ideals 5 

Chapter      II.     Compromise  in  the  Charter         13 

Chapter    III.     The   Prerogative   Bodies 22 

Chapter    IV.     The  Popular  House 42 

Chapter      V.     The    Salary   Question 64 

Chapter    VI.     Control  of  the  Treasury 95 

Chapter  VII.     Control  of  Military  and  Diplomatic  Affairs     .      .      .  115 

(3) 


CHAPTER    I.      ANTAGONISTIC    COLONIAL    IDEALS. 

In  the  constitutional  history  of  Massachusetts  there  are  pre- 
sented to  view  three  well  marked  periods  of  development,  sep- 
arated by  revolutions.  They  may  be  called  the  colonial,  the  pro- 
vincial and  the  commonwealth  periods,  and  correspond  roughly 
with  the  seventeenth,  the  eighteenth  and  the  nineteenth  centuries, 
respectively.  But  in  its  more  obvious  features,  at  least,  this  is  not 
a  history  of  steady  progress  toward  constitutional  liberty ;  rather 
there  are  two  periods  of  such  development,  separated  by  a  third 
of  conscious  reaction. 

In  the  first  or  colonial  period  we  see  what  claimed  to  be,  and 
in  many  respects  was,  a  commonwealth,  self-sufficient,  dependent 
on  England  for  sovereignty,  but  itself  assuming  the  exercise  of 
all  sovereign  powers.  Barely  nominal  regard  was  shown  for  the 
express  commands  of  the  king  of  England,  and  the  relations  held 
with  him  were  those  rather  of  diplomacy  than  of  colonial  subjec- 
tion. The  reason  for  this  was  to  be  found  first,  in  the  infancy 
of  the  colony,  a  time  when  generally  the  ideas  of  private  founders 
are  allowed  free  course,  in  the  ideal  of  a  free  Calvinistic  common- 
wealth, enjoying  complete  self-determination  in  a  polity  which 
made  the  state  serve  the  church  ;  secondly,  after  the  colony  had 
acquired  a  character,  and  strength  to  stand  for  that  character, 
in  the  preoccupation  of  the  home  government  with  civil  distur- 
bance in  England. 

With  the  progress  of  Charles  II's  reign,  as  the  purity  of  the 
colonial  ideal  was  corrupted  and  as  the  home  government  won 
leisure  to  attack  its  problem  of  empire,  this  quasi-independent 
regime  was  attacked  by  foes  without  and  within,  a  process  which 
reached  its  climax  in  what  may  be  called  the  revolution  of  1684- 
91.  The  foes  without  were  the  English  agents  of  the  Restoration 
policy,  such  as  Randolph  and  Andros ;  the  foes  within  were 
Massachusetts  men  dissatisfied  with  the  old  regime,  such  as 
Joseph  Dudley  and  a  growing  party,  who  were  wearying  of  the  old 
exclusive  Congregationalism  and  the  Puritan  morals,  or  who  had 
commercial  aspirations  toward  larger  economic  possibilities  of  the 
province   in  trade  with  the  mother  country ;   their   co-operation 

(5) 


6  CONSTITUTIONAL    CONFLICT 

resulted  in  1684  in  the  annulment  of  the  charter  of  1629,  the 
downfall  of  the  old  self-government,  and  the  setting  up  of  a 
provincial  government  strictly  dependent  upon  England,  first  in 
1685-6,  as  defined  merely  in  Andros's  commission  and  instruc- 
tions, then  in  1691,  elaborated  in  a  charter.  What  is  often  called 
the  revolution  of  April  19,  1689,  when  the  Andros  government 
was  overthrown  and  the  old  system  set  on  its  feet  again  de  facto 
for  a  brief  period,  must  be  regarded  as  a  mere  episode  in  the 
experimentation  toward  a  satisfactory  provincial  system.  It  cer- 
tainly affected  the  form  of  that  system,  but  the  real  revolution 
was  from  colony  to  province.  This  was  reaction  from  the  Mas- 
sachusetts point  of  view,  progress  from  the  imperial.  The  the- 
ory of  the  empire  demanded  that  its  members  be  strictly  subordi- 
nated to  its  head,  that  the  home  government  have  its  responsible 
agents  in  the  colonies,  to  secure  co-operation  and  some  degree 
of  uniformity.  Hence  an  independent  commonwealth,  like  the 
Massachusetts  of  the  seventeenth  century,  with  no  means  of 
enforcing  the  empire's  will  in  the  colony,  was  anomalous  and 
unendurable. 

The  present  study  is  concerned  with  some  phases  of  the  sec- 
ond or  provincial  period.  The  new  system  was  a  mixture  of  two 
diverse,  frequently  opposed,  sets  of  institutions,  those  of  the 
normal  British  province,  and  those  commonwealth  institutions 
which  Massachusetts  had  developed  in  her  seventeenth-century 
independence.  In  the  antagonism  soon  found  and  developed 
between  them  there  appeared  a  constant  tendency  to  reaction 
toward  colonial  autonomy,  a  tendency  which  was  constantly  op- 
posed and  hampered  in  its  progress  by  the  prerogative  elements 
in  the  system.  The  latter  had  been  designed  to  be  predominant, 
but  were  obliged  perforce  to  give  place  more  and  more  to  the 
encroaching  popular  elements.  The  provincial  system  of  the 
first  part  of  the  eighteenth  century  was  then  a  multiform  attempt 
to  reconcile  actual  British  sovereignty  with  considerable  practical 
applications  of  colonial  self-government.  But  as  the  century  pro- 
gressed the  reconciliation  became  more  and  more  difficult.  The 
menacing  presence  of  the  French  on  the  northern  border  neces- 
sitated during  the  "half-century  of  conflict"  a  conciliatory  policy 
on  the  part  of  England,  to  secure  willing  co-operation  in  defence, 
and  this  meant  that  the  constitutional  issue  must  be  postponed. 
After  the  passing  of  the  French  peril  in  1763  the  issue  was  forced 


IN    PROVINCIAL    MASSACHUSETTS.  7 

from  home.  But  in  a  series  of  constitutional  conflicts  between 
popular  and  prerogative  elements  of  the  system  the  province  had 
been  developing  a  constitutional  opinion,  and  a  sentiment  in  favor 
of  that  opinion :  it  held  that  self-government  to  secure  the  Massa- 
chusetts conception  of  the  rights  of  Englishmen  was  indispensable 
to  her  welfare  and  was  worth  even  the  sacrifice  of  the  British 
name,  if  that  should  prove  necessary ;  it  developed  a  sentiment  that 
was  to  prove  strong  enough  even  to  sustain  the  shock  of  a  war 
to  make  good  that  opinion. 

It  is  this  development  of  the  provincial  period  that  resulted 
in  what  is  called  the  American  Revolution,  whose  issue  for  Mas- 
sachusetts was  a  third  status,  that  of  the  legally  as  well  as  actually 
independent  commonwealth,  fully  self-determining  in  its  policy 
and  conduct,  and  shortly  entering  into  a  union  with  other  com- 
monwealths for  the  purpose  of  making  more  secure  the  enjoy- 
ment of  independence  and  self-government. 

It  is  necessary,  first,,  to  examine  the  two  opposing  govern- 
mental principles  whose  interaction  is  the  key  to  the  constitutional 
history  of  the  provincial  period.  Three-quarters  of  a  century  of 
neglect  by  the  home  government  had  given  the  infant  colony 
opportunity  to  develop  in  its  own  way,  its  form  determined  by 
the  fact  of  organization  as  a  corporation ;  but  even  this  form  was 
disregarded  when  the  central  purpose  of  the  enterprise  demanded 
the  assumption  of  powers  not  usual  among  corporations.  Under 
the  guidance  of  two  generations  of  determined,  aristocratic  Pur- 
itans Massachusetts  had  become  a  theocracy,  its  sovereignty 
vested  in  the  "freemen"  of  the  Massachusetts  Bay  Company, 
whose  power  was  concentrated,  with  the  consent  of  the  church- 
members,  in  the  hands  of  the  rulers  of  the  Congregational  church. 
This  Company,  originally  organized  with  an  English  corpora- 
tion's powers  for  trade,  land-holding,  and  colonization,  had  been 
transplanted  to  America,  where  it  became  merged  in  the  colony 
by  the  admission  of  the  prominent  resident  colonists  to  the  cor- 
poration. It  gradually  forsook  its  natural  original  functions,  and 
became  merely  a  political  body,  exercising  as  its  chief  reason 
for  being  the  power  to  "governe  and  rule,"^  which  had  been 
intended  to  be  merely  incidental  to  the  more  ordinary  powers  of 
colony-planting,  land-holding,  and  trading. 


'  Alass.  Col.  Records,  I.  17. 


O  CONSTITUTIONAL    CONFLICT 

The  Assistants,  or  governing  body  of  the  corporation,  began 
the  exercise  immediately  of  executive,  more  gradually  of  legis- 
lative and  judicial,  powers.  But  the  first  twenty  years  of  the 
colony's  history  saw  a  steady  growth  of  democracy,  the  gen- 
erality of  the  corporation  asserting  and  making  good  their  claim 
to  a  share  in  the  government.  The  result  of  this  conflict  was  the 
development  of  the  General  Court  as  the  governing  body  of  the 
colony,  composed  of  two  houses,  which,  taken  together,  constituted 
its  highest  authority  and  could  speak  the  will  of  the  Massachusetts 
Bay  Company.  Massachusetts,  in  the  seventeenth  century,  was  a 
prophecy  of  what  the  Great  Britain  of  the  nineteenth  century 
should  be,  a  unified  parliamentary  system,  with  all  powers  of 
government  depending  mediately  or  immediately  on  the  legis- 
lature, the  General  Court,  which  not  only  made  law  and  raised 
money  in  its  legislative  capacity,  but  also  elected  and  super- 
intended the  action  of  the  executive,  the  two  departments  being 
in  a  relation  of  mutual  control  and  guidance.  The  church-mem- 
bership qualification  made  it  far  from  a  democracy  resting  on  the 
consent  of  the  governed ;  but  to  the  extent  of  the  church  member- 
ship, for  the  political  people,  it  was  practically  what  it  sometimes 
called  itself,  a  commonwealth.  It  depended  on  the  outside  world 
(even  the  mother  country)  for  none  of  its  essential  powers;  it 
was  a  self-governing  colony  of  the  nineteenth-century  type,  rather 
than  a  province  of  the  eighteenth-century  type. 

The  normal  English  province  of  the  eighteenth  century,  on 
the  other  hand,  suggests  the  second  of  the  two  governmental 
principles,  whose  contradiction  and  conflict  was  to  be  the  central 
thread  running  through  Massachusetts  provincial  history.  With 
the  restoration  of  Charles  II  came  the  formulation  of  the  British 
theory  of  colonies,  that  was  to  be  put  forth  during  a  century  and 
a  half,  an  essential  part  of  the  mercantile  system.  It  regarded 
the  colony  as  existing  primarily  for  the  sake  of  the  mother  coun- 
try, only  secondarily  for  its  own  as  part  of  that  mother  country's 
family.  The  colony  was  justifying  its  existence  only  if  it  min- 
istered to  the  development  of  the  mother  country,  furnishing  raw 
materials  for  her  manufacture  or  a  market  for  her  products. 
Commercial  interests  were  dominant,  and  the  theory  of  govern- 
ment for  colonies  was  evolved  with  a  view  to  promoting  them. 

Here,  then,  is  the  fundamental  idea  in  the  imperial  theory  of 
colony  government.    The  province  was  to  exist  not  primarily  for 


IN    PROVINCIAL    MASSACHUSETTS.  9 

its  own  sake,  but  for  the  mother  country.  If,  then,  England's  will, 
and  not  that  of  Massachusetts,  was  to  prevail,  the  form  of  govern- 
ment must  be  adapted  to  that  end.  It  must  be  a  province  and  not 
a  commonwealth.  The  political  center  of  gravity,  the  right  to 
give  sovereign  command,  must  be  not  within,  not  the  general  will 
of  the  members,  but  without,  in  the  sovereign  will  of  England. 
The  expression  and  execution  of  that  will  in  and  for  the  colony 
was  most  conveniently  and  effectually  performed  through  a  gov- 
ernor. Its  constitution  was  to  be  like  that  of  the  Tudors,  a  mon- 
arch governing  the  people  through  his  own  action  and  that  of 
agents  constituted  and  controlled  by  himself ;  the  representative 
body  existing  merely  to  grant  the  taxes  demanded  and  assent  to 
the  laws  proposed  by  the  executive  body. 

This  was  in  general  terms  the  ideal  English  view  of  colonies 
in  the  later  seventeenth  century.  It  never  got  a  complete  appli- 
cation in  Massachusetts  except  in  the  brief  administration  of 
Andros,  but  it  must  be  borne  in  mind  as  one  of  the  two  rival 
principles. 

The  first  shock  of  their  opposition  in  Massachusetts  came 
in  the  early  sixties  on  the  home  government's  attempt  to  enforce 
the  acts  of  trade  and  to  bring  about  substantial  uniformity  of 
law  throughout  the  empire,  with  the  correspondence  of  Charles 
II  and  Massachusetts,  and  the  sending  of  the  royal  commission 
of  1664.  With  the  discovery,  as  the  result  of  this  correspondence 
and  of  Randolph's  efforts,  that  these  two  ends  could  not  be  at- 
tained under  the  existing  constitution,  that  the  empire  had  no 
agents  to  enforce  its  will  in  the  colony,  that  the  colony's  govern- 
ment was  self-sufficient  and  could  afford  to  be  heedless  of  the 
home  government's  suggestions  or  even  commands,  obviously  the 
next  thing  was  the  removal  of  the  present  obstacle,  the  colony 
charter,  on  v/hich  rested  these  claims  of  autonomy.  Wtih  the 
annulment  in  1684  of  the  charter  granted  in  1629,  the  colony 
found  itself  in  the  hands  of  the  king,  with  nothing  in  law  to 
prevent  the  complete  application  to  Massachusetts  of  any  colonial 
theory  he  should  deem  fit.  Would  the  state  of  public  opinion  in 
Massachusetts  and  the  force  available  for  the  purpose  make  it 
practicable  for  the  home  government  to  apply  the  extreme  pre- 
rogative theory?  The  Andros  regime  was  an  experiment  in  this 
direction.  As  an  imperial  official  he  was  given  powers  nearly  abso- 
lute, all  government  to  be  by  himself,  assisted  by  a  council  named 


10  CONSTITUTIONAL   CONFLICT 

in  England,  a  body  which  by  the  terms  of  its  constitution  could 
be  made  an  instrument  entirely  in  his  hands.  Legislation  and 
tax-granting  should  be  by  this  council,  as  well  as  the  constitution 
of  courts  of  justice. 

The  failure  of  the  Andros  experiment  was  immediately  due 
to  the  collapse  in  England  of  the  unconstitutional  rule  of  James 
II,  and  it  is  impossible  to  say  whether  or  not  it  would  have  failed 
in  Massachusetts  in  case  James's  rule  had  been  accepted  by  the 
English  people  or  William  had  accepted  James's  colonial  theory 
entire.  It  seems  probable  that  at  least  a  violent  struggle  would 
have  been  made  by  Massachusetts  against  such  a  regime  as  per- 
manent, for  in  spite  of  Andros's  generally  mild  rule  there  was 
very  strong  opposition  in  several  parts  of  the  colony  to  the  pay- 
ment of  taxes,  not  as  excessive,  but  as  unconstitutional,  the  gen- 
eral sentiment  being  one  of  resentment  against  Andros  for  "accept- 
ing an  illegal  commission."  Besides  the  constitutional  opposition, 
Andros  found  himself  in  a  difficult  situation  in  that  he  must 
antagonize  the  two  strongest  elements  of  the  population,  the 
ecclesiastical  by  his  attempt  to  secure  religious  liberty  (for  the 
Anglican  church),  the  property-holding  by  his  declaration  of 
the  invalidity  of  titles  which  rested  on  grants  by  the  general  court 
through  towns   (almost  the  universal  form). 

Whether  inevitably  or  not,  the  Andros  experiment  failed, 
and  the  settlement  resulting  from  the  "glorious  revolution"  was 
in  Massachusetts  a  compromise  between  the  two  principles  of 
government  which  up  to  that  time  received  a  trial.  It  was 
early  decided  not  to  attempt  to  govern  Massachusetts  in  the  man- 
ner of  absolute  monarchy ;  that  v/as  probably  impossible  after 
what  happened  at  home  in  1688.  A  charter  should  be  granted  de- 
fining the  relation  between  king  and  people.  But  it  should  not  be 
the  old  charter,  under  which  practically  absolute  power  had  been 
granted  to  or  assumed  by  the  general  court.  The  new  charter 
of  1 69 1,  deriving  sovereignty  nominally  from  the  king  of  Eng- 
land, so  distributed  powers  that  the  exercise  of  sovereignty  was 
shared  between  the  home  government  and  the  organized  Massa- 
chusetts people.  The  governor  represented  the  tradition  of  the 
Andros  absolute  government.  The  general  court  represented  the 
tradition  of  colonial  self-government.  The  contrast  is  not  the 
same  thing  as  the  separation  of  executive  from  legislative  powers, 
but  the  two  Viavc  a  close  relation.     In  general  terms,  which  will 


IN    PROVINCIAL    MASSACHUSETTS.  II 

receive  considerable  qualification,  we  may  say  that  the  bodies  of 
government  which  exercised  executive  powers  represented  the 
provincial  element  in  the  system,  while  the  bodies  which  exer- 
cised legislative  powers  represented  the  commonwealth  element. 

The  provincial  period  witnessed  the  interaction  of  these  two 
theories  and  forces.  Government,  in  the  last  instance,  was  to  be 
by  neither  the  governor  nor  the  house,  but  by  the  two  in  agree- 
ment, one  necessarily  yielding  to  the  other.  The  compromise 
(Pownall's  "great  question  between  external  and  internal  princi- 
ples")^ whose  foundation  was  laid  in  the  charter,  was  subjected  to 
modifications  as  time  went  on  and  as  doubtful  points  in  the  charter 
received  interpretation.  These  determinations  depended  somewhat 
on  occasional  circumstances,  but  in  a  larger  way  they  show  a  ten- 
dency toward  the  restriction  of  the  charter  rights  of  the  king, 
and  the  enlargement  of  the  charter  powers  of  the  people,  a  ten- 
dency by  which  the  provincial  constitution  gradually  reverted 
toward  the  colonial.  But  the  duality  of  the  provincial  government 
was  always  marked,  as  compared  with  the  unity  of  the  colonial, 
and  though  there  were  times  when,  under  a  native  lieutenant- 
governor  or  a  weak  governor,  the  house  became  practically  the 
sovereign  parliament,  controlling  executive  policy  as  well  as  legis- 
lative, this  was  never  more  than  temporary.  As  soon  as  the  home 
government  realized  the  situation  a  new  appointment  brought  its 
proper  agents  again  into  action  for  the  execution  of  its  policy, 
and  the  unified  parliamentary  government  gave  way  to  the  normal 
provincial  government  of  balanced  governor  and  house. 

The  purpose  of  this  study  is  to  portray  the  agents  that  were 
used  in  carrying  out  these  principles,  especially  the  governor  and 
the  house ;  to  study  their  characteristics  as  bearing  on  the  general 
question  of  their  relation  to  one  another;  and  to  follow  to  their 
conclusion  some  of  the  more  important  disputes,  to  find  how  far 
the  tendency,  above  hinted  at,  for  the  house  to  gain  at  the  expense 
of  the  governor,  in  the  end  prevailed.  It  is  believed  that  such  a 
study  is  necessary  to  a  proper  appreciation  of  the  constitutional 
position  of  the  respective  contestants,  when  in  the  middle  of  the 
eighteenth  century  the  home  government  found  itself  ready  to 
push  to  an  issue  the  differences  of  opinion  then  prevailing  regard- 
ing its  constitutional  rights  over  the  colonies.     In  these  contests 


^  Pownall,   Administration   of  the  Colonies,  ix. 


12  CONSTITUTIONAL    CONFLICT 

the  colony  was  learning  the  specific  bearings  of  the  difference  be- 
tween prerogative  and  popular  theories  of  government,  was  devel- 
oping the  theoretical  views  which  it  was  to  claim  and  defend  as 
its  own,  and  was  educating  opinion  to  a  point  where  the  people 
would  fight  sooner  than  give  up  these  constitutional  claims ;  in 
a  word,  the  whole  provincial  period  was  the  time  when  the  issues 
were  formulated  and  the  forces  were  stored  up  which  were  to 
occasion  the  American  Revolution.  Or  it  might  be  figured  as 
a  siege,  conducted  on  the  plan  of  the  successive  capture  of  out- 
posts till  finally  the  home  government  makes  a  sortie  and  loses 
all.  But  there  was  no  conscious  striving  after  independence. 
It  was  the  specific  privileges  that  were  fought  for  and  won,  and 
independence  was  the  outcome  only  because  by  the  home  gov- 
ernment the  specific  privileges  claimed  were  deemed  incompatible 
with  colonial  dependence. 


CHAPTER  II.     COMPROMISE  IN   THE  CHARTER. 

The  charter  of  1691  is  to  be  observed  from  two  points  of 
view ;  first,  it  was  the  written  constitution  of  Massachusetts  dur- 
ing the  provincial  period.  After  what  has  become,  largely  under 
its  influence,  a  characteristically  American  fashion,  it  contained 
a  grant  of  governmental  powers,  to  be  exercised  in  certain  pre- 
scribed modes,  and  created  a  limited  system  of  government,  un- 
able to  enlarge  its  own  povv'ers,  subject  to  a  superior  sovereign 
body  which  was  then  the  king  in  parliament,  but  could  readily 
be  changed  in  1780  to  the  people  of  Massachusetts.  The  charter 
may  also  be  regarded  as  a  summing  up  of  the  constitutional 
struggle,  the  rigid  statement  in  a  document  of  the  compromise 
now  arrived  at  between  royal  and  popular  principles.  That  this 
rigidity  was  only  relative  the  provincial  period  was  to  show,  with 
its  shif tings  of  checked  and  balanced  powers. 

The  charter  was  signed  October  7,  1691,  the  result  of  sev- 
eral months'  negotiation  by  four  agents  of  the  province  on  the 
one  side,  and  on  the  other  by  the  privy  council's  Committee  for 
Trade  and  Plantations  and  Attorney-General  Treby.  The  annul- 
m.ent  of  the  former  charter  "by  Charles  II  and  the  fall  of  James 
II  and  Andres  had  conditioned  the  work  of  the  negotiations  in 
two  ways ;  the  independence  of  the  province  was  done  away  for 
good  and  all,  but  the  experiment  of  absolutism  had  proved  a 
failure  as  well.  The  committee,  having  experience  of  both 
regimes,  was  ready  now  on  the  basis  of  the  lessons  thus  learned 
to  establish  not  what  was  correct  theory,  but  what  was  practica- 
ble. The  agents,  moreover,  had  certain  vv^ell  defined  ideals,  but 
were  prepared  to  compromise  when  necessary.  Elisha  Cooke  and 
Thomas  Oakes,  who  arrived  in  England  as  extra  agents  in  March, 
1690,  having  left  Massachusetts  when  the  old  charter  government 
re-established  under  Bradstreet  was  in  operation,  were  firm  for  the 
restoration  de  jure  of  what  had  been  de  facto  restored.  The  other 
two  agents,  however.  Sir  Henry  Ashurst,  an  Englishman,  and 
Rev.  Increase  Mather,  who  had  left  Massachusetts  when  the 
Andros  'regime  was  in  full  operation,  knowing  better  the  condi- 
tion of  opinion  in  England  and  the  impossibility  of  a  continuance 

(1?.) 


14  CONSTITUTIONAL   CONFLICT 

of  the  old  system,  were  ready  to  take  what  they  could  get,  using 
the  familiar  market-place  method  of  claiming  everything,  but 
showing  a  readiness  to  yield  here  and  there  in  order  to  make  good 
their  claim  to  other  points. 

As  a  first  step,  early  in  1689  Mather  used  all  his  "interest" 
to  prevent  William's  reappointment  of  Andros  to  his  place  held 
under  James,  and  upon  the  news  of  Andros's  fall  to  prevent  the 
appointment  of  any  successor  as  general  governor  of  New  Eng- 
land. Partly  because  of  the  hasty  manner  in  which  the  old  char- 
ter had  been  annulled,  partly  because  of  the  uncertainty  as  to  the 
attitude  of  the  new  Whig  monarchy  to  the  colonial  policy  of 
James,  the  matter  was  left  undetermined  till  Andros  and  his 
subordinates  should  make  known  their  side  of  the  case,  and  mean- 
while word  was  sent  by  the  privy  council  to  those  who  were  ad- 
ministering the  government  in  Massachusetts  to  continue  in  that 
service  until  further  orders.^ 

In  order  to  a  permanent  settlement  Mather  hoped  at  first  for 
legislative  action.  The  Convention  Parliament,  in  January  of  1690, 
resolved  that  the  abrogation  of  charters  in  the  last  reign  was 
"illegal  and  a  grievance,"  and  passed  a  bill  through  the  commons 
for  restoring  them.  But  it  was  overweighted  with  vindictive 
propositions  displeasing  to  the  king,  and  was  thrown  out  by  the 
lords.  Upon  the  dissolution  the  newly  elected  parliament  was  too 
much  under  the  influence  of  the  reaction  against  Whig  revolu- 
tion to  pass  the  bill.  Therefore  the  application  to  the  legislature 
was  given  up.  The  defense  of  Andros  and  his  subordinates  against 
the  complaint  made  (though  unsigned)  by  the  agents,  and  the 
complaint  which  Andros  and  Randolph  were  able  to  make  good 
good  against  Massachusetts  in  the  matter  of  the  acts  of  trade, 
their  religious  exclusiveness  and  the  like,  produced  a  strong  sen- 
timent in  England  against  countenancing  the  revolutionary  party 
in  Boston ;  and  the  shower  of  petitions  and  counter-petitions  in 
1690,  some  in  favor  of  the  continuance  of  the  conciliar  regime, 
showed  that  the  province  was  by  no  means  a  unit  in  the  desire 
that  the  old  charter  should  be  restored.^ 

The  result  of  all  this  was  a  direct  application  by  the  agents  to 
the  king,  in  whose  hands  the  province  now  rested.     The  decision 

'August  12,  1689.     Quoted  in  Palfrey,  New  England,  IV.  25. 
'  Palfrey,  IV.  64-7. 


IN    PROVINCIAL    MASSACHUSETTS.  I5 

of  the  courts  against  the  charter  was  not  Hkely  to  be  reversed. 
ParHament  would  not  restore  it.  But  the  king  might  be  prevailed 
upon  to  reincorporate  his  subjects.  Accordingly  a  petition  was 
presented  to  the  king  in  council  with  the  heads  of  the  charter  of 
the  Massachusetts  Bay  Company  and  of  the  proprietary  charter 
to  Gorges  for  the  province  of  Maine  (since  1677  the  property  of 
the  Massachusetts  corporation),  and  the  request  that  their  Maj- 
esties "re-establish  their  corporation  and  grant  them  their  laws 
and  former  privileges."  In  addition  to  what  was  contained  in 
the  old  charter  new  powers  were  desired;  vix.,  precise  authoriza- 
tion of  a  representative  house,  power  to  tax  non-freemen  and 
strangers,  power  to  punish  offenders  (the  right  to  apply  the 
death  penalty  being  "difficult  to  make  out"  of  the  old  charter), 
admiralty  jurisdiction  such  as  had  been  granted  to  Gorges  for 
Maine,  power  to  erect  probate  and  chancery  courts,  to  coin 
money,  to  settle  and  raise  the  militia,  and  finally  a  general  confir- 
mation of  grants  of  land,  together  with  the  pardon  of  past  irregu- 
larities. This  petition,  having  been  favorably  reported  on  in  gen- 
eral terms  by  the  law  officers,  was  referred  to  the  lords  of  trade. 
Later  they  reported  that  it  was  necessary  for  them  to  know  whether 
it  was  the  king's  pleasure  "to  have  a  governor  or  single  repre- 
sentative of  his  own  appointment  from  time  to  time,  to  give  his 
consent  to  all  laws  and  acts  of  government,  as  in  Barbadoes  and 
other  Plantations,  Or  Whether  His  Majesty  will  leave  the  Power 
of  making  Laws  wholy  to  the  People  and  officers  to  be  appointed 
by  them."  The  king  declared  his  pleasure  that  there  be  a  gov- 
ernor appointed  by  himself,  and  April  30  the  privy  council  or- 
dered that  the  lords  of  trade  prepare  "the  draft  of  a  new  charter 
upon  that   foundation." 

The  work  now  proceeded  expeditiously,  Attorney-General 
Treby  putting  the  draft  into  legal  form  in  accordance  with  the 
determinations  of  the  lords  of  trade  as  to  policy,  holding  fre- 
quent consultations  with  the  Massachusetts  agents.  Mather 
especially  received  many  marks  of  their  consideration  for  his 
opinion  and  the  province's  desires,  but  on  matters  important  to 
the  prerogative  his  protests,  however  earnest,  were  unavailing. 
Even  the  attorney-general's  proposals  in  behalf  of  the  province 
were  in  some  cases  overridden  by  the  lords.  For  example,  the 
governor's  veto  upon  laws  and  the  appointment  of  the  lieutenant- 
governor  from  home  were  omitted  by  him  until  insisted  upon 


l6  CONSTITUTIONAL    CONFLICT 

by  thenv.  thowgh  Ivlather  had  declared  in  this  very  connection  that 
"he  would  sooner  part  with  his  life  than  consent."^  On  July  30  the 
draft  was  reported  to  the  privy  council  and  sent  to  the  king  (then 
with  the  army  on  the  continent)  for  his  approval,  and  decision 
as  to  two  chief  points  objected  to  by  the  agents.  They  desired 
that  judicial  as  well  as  other  general  officers  be  elected  by  the 
general  court,  not  by  the  governor  and  council,  and  that  the 
governor  have  no  veto  upon  elections  to  the  council.  From  the 
king  came  word,  August  20,  that  he  "did  by  no  means  approve 
of  the  objections,"  but  "did  approve  of  the  minutes  agreed  unto 
by  the  Lords  of  the  Committee."  On  August  27  the  agents  pre- 
sented a  petition  requesting  a  number  of  changes  in  detail,  and 
two  were  granted ;  the  "corporal"  oath  was  altered,  "that  so 
no  snare  may  be  laid  before  such  as  scruple  swearing  on  the 
book;"  and  a  clause  was  added  validating  land-titles  of  the  old 
regime  which  lacked  the  public  seal.  One  of  the  rejected  clauses 
was  prophetic  of  a  dispute  later  to  arise.  It  would  have  given 
power  to  the  assembly  to  constitute  agents  paid  by  the  province, 
to  "represent  their  interest  at  home  as  well  against  the  governor 
as  otherwise." 

The  document  thus  negotiated  constituted  the  province  a 
body  politic  and  corporate,  established  a  frame  of  government, 
and  distributed  governmental  powers  among  the  agents  thus  cre- 
ated. This  was  a  century  too  early  for  the  charter  to  contain 
a  list  of  rights  which  the  subject  should  enjoy  because  they  were 
his  originally  and  inalienably.  Individual  liberty  was  unprovided 
for,  and  the  liberties  of  the  people  were  secured  rather  in  the  frame 
of  government  and  in  the  political  means  of  defence  which  were 
granted,  than  in  any  enumeration  of  rights  which  might  not  be 
infringed  by  government. 

Speaking  in  general  of  the  frame  of  government,  we  must 
recognize  first  the  continuity  between  the  old  and  new  systems. 
It  is  not  a  case  of  throwing  down  one  in  1684  and  setting  up 
another  in  1691.  However  complete  the  discretion  of  the  lords 
of  the  committee  as  to  the  details  of  the  charter,  they  did  not, 
practically  they  could  not,  get  away  from  the  fact  that  the  colony 
had  a  political  past  which  must  be  considered  the  foundation  of 
its  future ;  that  it  had  evolved  a  system  of  government  which, 


'  C.   Mather,   Parentator,   134,  in  Andros   Tracts. 


IN    PROVINCIAL    MASSACHUSETTS.  I7 

though  it  had  lost  its  legal  form  in  1684,  was  still  present  as  a 
hard  political  fact,  and  whose  ignoring  in  essentials  would  cause 
friction  impossible  to  overcome.  Essentially  the  new  charter 
meant  only  the  re-establishment  of  the  colony  government  with 
certain  important  modifications  in  the  direction  of  dependence  on 
England.  Eighteenth-century  Massachusetts  was  rather  a  corpor- 
ate colony  modified  toward  the  province  type  than  a  province 
varying  toward  the  colony  type. 

But  in  form  the  province  charter  wrought  several  striking 
changes.     The  executive  was  no  longer  elective,  with  power  de- 
rived  from  the  representative  general  court.     The  king  was  to 
send  over  a  governor,  a  lieutenant  governor  and  secretary,  com- 
missioned to  hold  office  during  his  pleasure.     The  magistrates, 
constituting  both  the  governor's  council  and  the  upper  legislative 
house,  had  been  changed  from  the  assistants,  elected  by  the  general 
court  and  of  practically  equal  rank  and  power  with  the  governor, 
to  the  council,  subject  to  the  governor's  veto  (a  point  strenuously 
resisted  by  the  agents),  and  distinctly  inferior  to  him  in  the  exec- 
utive. Its  character  was  thus  changed  to  a  minor  prerogative  body, 
the  leadership  of  the  colony  having  passed  from  it  to  the  house.  In 
respect   to  the   house  the   change   wrought  by   the   charter  was 
unimportant  practically,  but  a  great  gain  to  the  province  legally. 
What  had  sprung  up  spontaneously  at  the  demand  of  the  rising 
spirit  of  democracy,  but  with  no  foundation  in  the  colonial  con- 
stitution, was  now  given  precise  authorization,  and  the  powers  and 
privileges  of  the  house,  already  long  exercised  and  reduced  to 
custom,   were  now  given    express   recognition   and   legality.      A 
judicial  system  should  again  be  set  up  by  the  colonial  legislature, 
but  the  appointment  of  judges  should  now  be  not  by  the  people 
or  the  representative  body,  but  by  the  governor  and  council.     An 
important  step  in  the  reduction  of  the  colony  to  its  proper  pro- 
vincial status  was  the  charter's  guaranty  of  appeal  from  colonial 
courts  to  the  king  in  council,  in  personal  actions  of  a  certain  value, 
a  final  denial  of  the  colony's  long-maintained  claim  of  jurisdic- 
tional self-sufficiency.     The  questions  were  now  set  at  rest  which 
had  risen  as  to  the  legality  of  the  colonial  courts  and  their  right 
to  inflict  punishments,  such  functions  having  rested  hitherto  upon 
an  extremely  loose  construction  of  a  corporation's  powers.     The 
powers  of  legislation  and  finance  were  now  set  on  a  firm  founda- 

2 


l8  CONSTITUTIONAL   CONFLICT 

tion  of  constitutional  grant.  Law  was  still  to  be  made  by  the 
general  court,  but  the  participation  of  the  representative  house 
with  the  assistants  was  here  expressly  provided  for.  On  the  other 
hand,  the  practically  absolute  power  hitherto  enjoyed  by  the  gen- 
eral court  was  subjected  to  two  very  substantial  limitations.  The 
governor  was  no  longer  a  mere  presiding  officer  of  the  upper  house. 
He  received  an  unqualified  veto  upon  legislative  acts  of  whatever 
sort,  becoming  in  effect  a  third  house  of  the  legislature.  More- 
over, acts  of  the  general  court  must  be  not  repugnant  to  the  laws 
of  England,  and  were  made  subject  to  the  disallowance  of  the  king 
in  council,  a  power  that  might  be  exercised  at  any  time  within 
three  years,  and  either  for  the  purpose  of  cutting  off  unconstitu- 
tional acts  or  at  the  imperial  discretion.  The  power  of  the  purse 
was  expressly  given  to  the  general  court.  Hitherto  the  right  to 
tax  had  rested  only  on  the  power  of  the  corporation  to  assess  its 
members,  and  it  might  well  be  questioned  whether  non-freemen, 
persons  not  members  of  the  corporation  (a  category  including 
probably  a  very  large  majority  of  the  inhabitants),  were  subject 
to  its  taxation.  The  executive  function  of  warranting  the  issue  of 
money  from  the  treasury  was  given  to  the  governor  and  council, 
but  there  was  a  possibility  of  future  dispute  in  the  requirement 
that  this  issue  be  according  to  acts  and  rules  of  the  general 
court,  while  the  legislature  will  be  found  using  this  latter  power 
to  acquire  a  right  of  appropriation,  and  hence  more  and  more 
control  over  administration.  The  qualification  for  the  exercise 
of  the  suffrage  had  hitherto  been  membership  in  the  established 
Congregational  church.  This  was  utterly  done  away  by  the  char- 
ter of  1691,  and  in  its  place  was  the  requirement  of  the  possession 
of  property,  landed  or  personal.  This  was  the  legal  expression  of 
what  had  already  become  actual,  a  change  of  basis  in  the  provin- 
cial society  from  church  to  wealth.  It  may  well  be  questioned 
whether  the  change  meant  any  substantial  widening  of  the  suf- 
frage, but  it  was  significant  of  the  secularizing  of  Massachusetts, 
the  loss  of  its  peculiar  theocratic  polity,  a  step  in  its  assimilation 
to  the  normal  province. 

For  many  reasons  the  charter  was  to  be  regarded  as  a 
gain  to  the  province,  giving  legal  validity  to  practices  found 
convenient  but  hitherto  having  insecure  legal  foundation.  Never- 
theless the  inclusion  of  prerogative  elements,  especially  the  im- 
perial governor  with  his  negative  upon  laws  and  elections,  made 


IN    PROVINCIAL    MASSACHUSETTS.  I9 

it  seem  very  far  from  the  desire  of  the  province.  Two  of  the 
agents,  Cooke  and  Oakes,  steadfastly  opposed  its  acceptance 
while  in  England.  Mather  was  brought,  though  with  sincere 
reluctance/  to  accept  it  as  the  best  Massachusetts  could  hope  for 
from  a  king  more  fond  of  efficiency  than  of  liberty  in  governments 
subject  to  him;  and  after  doing  his  best  to  secure  its  modification 
according  to  colonial  ideas,  accepted  the  inevitable  and  endeavored 
to  recommend  it  to  the  people  of  the  province.  The  people  them- 
selves were  divided  in  sentiment,  but  universally  saw  that  resist- 
ance was  out  of  the  question,  and  that  it  was  for  them  to  make 
the  most  of  the  privileges  that  had  been  granted,  in  order  to 
win  back  the  substance  of  powers  they  had  nominally  lost.  Ac- 
ceptance was  made  easier  by  the  first  appointments,  for  they  were 
all  made  upon  Mather's  nomination :  Governor  Phips,  a  native 
of  Massachusetts,  of  whose  exploits  in  Nova  Scotia  she  was 
proud,  an  intimate  and  admiring  friend  of  Mather's ;  Lieutenant- 
governor  Stoughton  and  Secretary  Addington,  men  who  had 
been  prominent  in  the  old  colony  government,  and  whose  ap- 
pointment might  be  expected  to  gratify  the  province  and  make 
it  think  that  it  was  enjoying  a  considerable  degree  of  self- 
government  under  provincial  forms ;  the  council  of  twenty-eight, 
with  one  exception  Massachusetts  men,-  and  including  all  the 
leading  men  of  the  colony  except  the  implacable  partisans,  Cooke, 
Oakes,  and  Danforth,  who  persistently  refused  to  accept  and 
support  the  new  regime. 

The  charter  in  action  v/as  the  fundamental  law  of  the  prov- 
ince, to  which  every  statute  must  conform  or  suffer  disallowance 
from  home.  But  superiority  was  claimed  for  it  not  only  over  colo- 
nial acts  of  government,  but  over  imperial  as  well.  Even  a  gov- 
ernor's instruction,  however  late  or  peremptory  in  terms,  was 
understood  to  have  no  power  to  compel  the  provincial  govern- 
mental bodies,  so  long  as  they  could  base  themselves  on  a  charter 
provision  to  the  contrary. 

Under  these  conditions,  as  time  passed,  the  provincial  char- 
ter came  to  be  cherished  with  something  of  the  reverent  regard  in 
which  the  colonial  charter  had  been  held.  The  threat  of  its 
abrogation   was  a  club   held  over  the  province  throughout  the 

^  Palfrey,  IV.  82. 

'Hutchinson,  Massachusetts,  II.  20,  21,  note. 


20  CONSTITUTIONAL   CONFLICT 

period.  From  time  to  time  vague  intimations  were  given  by  the 
secretary  of  state  or  the  board  of  trade  that  certain  misdemean- 
ors of  the  province  would,  if  continued,  be  regarded  as  "worthy 
the  consideration  of  the  legislature,"  that  is,  that  parliament  would 
take  upon  itself  the  altering  of  the  province  constitution.  However 
useful  as  a  threat,  such  action  was  improbable  and  almost  im- 
practicable, and  the  threat  ceased  to  have  weight.  The  prerog- 
ative bodies,  privy  council  and  board  of  trade,  were  jealous  of 
the  intrusion  of  parliament  into  their  peculiar  field  of  colonial 
affairs,  and  would  therefore  be  very  reluctant  to  call  in  its  aid 
except  as  a  last  resort.  Moreover,  competing  statesmen,  who 
as  secretaries  of  state  or  opposition  leaders  would  have  the  respon- 
sibility of  dealing  with  the  colonies  as  a  party  issue,  were  very 
reluctant  to  introduce  a  matter  of  such  delicacy,  which  might 
overturn  the  balance  of  parties  in  unexpected  ways.  So  Walpole 
in  1729  would  be  very  slow  to  accede  to  Newcastle's  desire  of 
parliamentary  action  to  settle  the  salary  controversy,  lest  the  issue 
be  made  use  of  for  party  purposes  by  his  rival. 

In  1725  an  Explanatory  Charter  was  granted  upon  the  rec- 
ommendation of  the  board  of  trade.  Shute's  quarrel  with  the 
house  had  revealed  two  points  upon  which  the  charter  was  am- 
biguous and  upon  which  the  home  government  was  now  ready  to 
declare  its  mind :  the  governor's  right  to  veto  the  election  of 
speaker  of  the  house  and  his  right  to  control  the  adjournment  of 
the  general  court.  The  charter  was  accepted  by  the  court  in  for- 
mal resolve,^  but  such  action  was  wholly  unnecessary  for  its 
validity,  and  only  meant  the  asquiescence  of  the  province  in  the 
inevitable,  glad  to  get  off  with  so  easy  a  punishment  for  its  mis- 
deeds. 

Such  then  was  the  constitution  of  Massachusetts,  legally  a 
grant  of  governmental  powers  by  the  king  out  of  his  preroga- 
tive, but  in  the  view  of  the  province  partaking  largely  of  the  nature 
of  a  direct  constitutional  compact  between  the  king  and  the  peo- 
ple of  Massachusetts.  The  people  owed  allegiance  to  the  king, 
and  would  remain  his  loyal  subjects  (under  their  own  colonial  leg- 
islature and  local  self-government)  so  long  as  his  part  of  the  com- 
pact was  fulfilled,  viz.,  the  protection  of  the  people  and  the  preser- 
vation to  them  of  their  liberties  as  Englishmen.   It  was  the  attempt 

^  1725-26,  c.  467,  Acts  and  Resolves  of  the  Province  of  Massachu- 
setts Bay,  X.  738. 


IN    PROVINCIAL    MASSACHUSETTS.  21 

to  ignore  this  direct  constitutional  relation  between  king  and 
Massachusetts  people,  the  attempt  to  reduce  Massachusetts  to  the 
condition  of  a  mere  dependency,  the  exercise  of  the  sovereign 
power  of  the  British  parliament  to  break  the  Massachusetts  char- 
ter in  1774,  that  brought  on  a  revolution.  Massachusetts  took  up 
arms  in  1775,  not  to  win  new  powers,  but  to  resist  the  encroach- 
ments of  parliament  upon  what  the  province  had  come  to  regard  as 
her  constitution,  and  the  system  to  which  she  resorted  in  the  in- 
terregnum of  war,  the  constitution  which  she  set  up  in  revolution 
to  fight  for  and  defend  was  the  system  set  forth  in  the  charter 
of  iC"-i. 


CHAPTER  III.     THE  PREROGATIVE  BODIES. 

The  provincial  governor  must  be  viewed  in  his  twofold  ca- 
pacity of  head  of  the  province  and  agent  of  the  home  govern- 
ment. Under  the  old  charter  the  governor  had  derived  all  his 
power  from  the  colony,  and  had  bestowed  practically  all  his  efforts 
upon  the  service  of  its  interests.  The  home  government  had  then 
lacked  an  efficient  agent  for  the  execution  of  its  will,  and  the 
purpose  of  curing  this  defect  had  been  the  chief  reason  for  the 
changing  of  the  system,  from  the  old  charter  to  the  new ;  hence 
the  character  of  the  new  governor's  office  is  especially  worthy 
of  study. 

But  these  tvv'o  differing,  and  sometimes  opposed,  aspects  of 
the  governor's  office  will  not  be  studied  separately.  Rather,  they 
must  be  borne  in  mind  together  as  constant  conditions  of  the 
problem,  while  the  governorship  is  studied  as  an  institution  of 
government,  in  its  own  make-up  and  in  its  relation  with  other 
institutions.  Occasions  arose  when  the  governor  as  head  of 
the  province  had  a  different  motive  and  policy  from  the  gov- 
ernor as  agent  of  the  home  government,  when  the  interests  of 
colony  and  empire  apparently  clashed.  For  the  outcome  of  this 
conflict  it  must  be  observed  at  once  that,  while  in  form  and  func- 
tions the  governor  appeared  primarily  as  the  head  of  the  province, 
yet  by  reason  of  the  source  of  his  power  and  the  means  by  which 
he  was  controlled  he  was  primarily  the  agent  of  the  empire.  Gov- 
ernmental authority  for  the  province  was  derived  through  his  com- 
mission from  the  king  and  hence  he  became  the  proximate  source 
of  all  that  made  for  the  prerogative  interest  in  the  province, 
both  official  and  political,  the  source  of  office  and  the  nucleating 
center  of  the  prerogative  party.  From  yet  another  point  of  view, 
he  was  the  king's  representative,  his  viceroy,  standing  presump- 
tively above  parties  for  the  unity  of  the  province  in  its  imperial 
relations. 

The  most  striking  change  from  the  old  system  to  the  new 
was  the  mode  of  appointment  of  the  governor.  No  longer  sub- 
ject to  annual  election  by  the  people  whom  he  was  to  govern, 
he  depended  upon  the  commission  of  the  king,  continued  during 

(22) 


IN    PROVINCIAL    MASSACHUSETTS.  23 

pleasure.  He  must  have  constant  regard  to  the  interests  of  a 
power  outside  the  province,  which  had  made  and  might  unmake 
him.  The  oaths  by  which  he  was  bound  were  framed  accord- 
ingly. Besides  the  oath  of  office,  he  must  take  those  of  allegiance 
and  supremacy,  binding  him  to  the  Protestant  succession  in 
England,  and  yet  another,  relating  to  the  enforcement  of  the 
acts  of  parliament  touching  the  colonies,  especially  the  acts  of 
navigation  and  trade. ^ 

Besides  the  formal  grant  of  power  through  the  commission, 
the  governor  received  instructions^  as  to  its  use,  which  were  pre- 
pared by  the  board  of  trade  and  authorized  by  the  privy  council. 
At  each  appointment  a  full  set  of  instructions  was  issued,  a  quasi- 
constitution,  defining  the  limits  within  which  the  prerogative 
might  not  be  encroached  upon,  outlining  the  policy  which  the 
home  government  desired  the  governor  to  pursue  upon  matters 
in  controversy.  These  instructions  did  not  vary  much  between 
administrations,  except  that  they  showed  a  constant  tendency  to 
grow  in  number  and  definiteness.^  Additional  instructions  were 
issued  as  occasion  arose,  prescribing  the  governor's  course  of 
action  upon  special  matters  either  of  imperial  administration  or 
of  colonial  legislation.  The  instructions  were  regarded  as  of 
force  only  between  the  two  parties  giving  and  receiving,  the 
home  government  and  its  agent.  The  governor  might  be  in- 
structed to  insist  upon  the  assembly's  establishing  a  salary,  but 
the  assembly  was  regarded  as  within  its  rights  in  refusing,  how- 
ever much  the  governor  might  expostulate  against  their  presump- 
tion in  refusing  the  king's  express  wish.  As  to  the  governor's 
own  obedience,  it  rested  largely  with  his  official  conscience.  Of 
neglect  in  an  important  matter  he  was  likely  to  be  admonished 


'  Greene,  Provincial  Governor,  55,  68. 

'  Greene,  93-96. 

^  Phips  received  36,  Bellomont  44,  Dudley  73,  Burgess  78,  etc.  A 
collection  of  the  commissions  and  instructions  to  Massachusetts  gov- 
ernors is  being  prepared  for  publication  by  the  Colonial  Society  of  Massa- 
chusetts. By  the  kindness  of  Mr.  Henry  H.  Edes,  Treasurer  of  the 
Society,  the  writer  has  had  the  opportunity  of  examining  the  printer's 
copy,  and  it  is  to  this  forthcoming  v/ork,  which  will  constitute  Volume 
II  of  the  Society's  Publications,  that  reference  must  be  made  for  that 
whole  body  of  sources,  not  hitherto  in  print,  with  the  single  exception 
of  Dudley's  instructions,  in  Mass.  Hist.  Soc.  Collections,  Series  3,  Volume 
IX. 


24  CONSTITUTIONAL    CONFLICT 

by  the  secretary  of  state  or  the  board  of  trade,  but  the  only  means 
of  compelHng  obedience  was  a  threat  of  recall  and  of  the  loss  of 
royal  favor,  a  force  which  was  sufficient  to  determine  in  general 
the  policy  of  the  ambitious  appointee,  but  which  necessarily 
allowed  him  considerable  uncontrolled  freedom  of  obedience  or 
disobedience  in  less  important  matters. 

More  informally,  the  will  of  the  home  government  was  com- 
municated to  the  governor  through  the  letters  of  the  secretary 
of  state  and  board  of  trade.  He  was  instructed  to  keep  them 
minutely  informed  of  all  that  concerned  the  execution  of  his 
commission,  the  purpose  of  the  colonial  legislation  sent  home  for 
approval,  and  his  opinion  as  to  its  fitness  for  royal  confirmation. 
The  volume  and  usefulness  of  this  correspondence  varied  with 
the  personality  of  the  incumbent.  Bellomont  was  an  indefatiga- 
ble man  of  business,  and  his  letters  were  numerous  and  full  of 
information.  Shute,  at  the  other  extreme,  was  much  complained 
of  for  his  neglect  of  correspondence,  leaving  important  acts  of 
government,  the  home  authorities  complained,  to  be  reported  to 
them  by  the  public  prints,^  and  sending  letters  only  at  long  in- 
tervals. Belcher's  letters  were  numerous  and  long,  but  unsatis- 
factory for  administrative  purposes,  being  filled  principally  with 
jealous  strictures  on  fellow  officials  and  with  the  urging  of  his 
own  claims  to  royal  favor. - 

Theoretically  the  governor,  as  an  expert  on  colonial  condi- 
tions, and  the  board  of  trade,  with  its  wider  view  of  imperial  in- 
terests and  its  information  on  conditions  in  other  colonies,  were, 
through  intimate  and  frequent  correspondence,  to  concert  and 
execute  a  policy  which  was  adapted  to  the  service  of  both  colony 
and  empire,  to  secure  a  degree  of  unity  among  the  members  of  the 
latter,  and  of  uniformity  in  their  procedures.  Only  in  a  slight 
measure  was  this  end  attained,  for  there  were  great  difficulties  in 
the  way  of  a  complete  understanding.  The  lack  of  a  system  for 
training  officials  for  colonial  service  at  home  and  abroad,  and  the 
thorough  grip  of  the  spoils  principle  on  the  system  of  appointment, 
made  the  personnel  unsatisfactory  in  point  of  efficiency.  The  dim- 
inishing influence  and  significance  of  the  board  of  trade,  and  the 
official  ignorance  and  carelessness  in  reference  to  colonial  aflfairs, 
exemplified  in  the  Duke  of  Newcastle  as  secretary  of  state,  were 

^  Chalmers,  Revolt  of  the  Colonies,  II.  26. 

^  Many  are  printed  in  Mass.  Hist.  Soc.  Collections,  Series  6,  Vol.  VI. 


IN    PROVINCIAL    MASSACHUSETTS.  25 

combined  with  the  physical  obstacles  to  communication  arising 
from  great  distance  and  irregular  despatch  service,  to  make  im- 
perial control  of  the  empire's  servant  in  the  colony  less  and  less 
efficient.  The  result  was  a  growing  predominance  in  the  gov- 
ernor of  what  was  designed  to  be  his  minor  characteristic, 
that  of  servant  of  the  province.  The  tightening  of  the  reins 
during  and  after  Halifax's  administration  of  colonial  affairs  came 
too  late  to  counteract  this  tendency,  and  it  is  not  without  signifi- 
cance that  the  time  of  this  change  is  very  nearly  coincident  with 
that  of  more  energetic  colonial  resistance  to  dictation  from  Eng- 
land, which  led  shortly  to  the  Revolution. 

The  governor  had  important  relations  with  legislation  and 
with  the  administration  of  justice,  as  well  as  the  executive 
duties  that  were  more  peculiarly  characteristic  of  the  office. 
His  right  to  convene,  adjourn,  and  dissolve  the  general  court 
occasioned  disputes  with  the  house,  which  are  more  conven- 
iently treated  in  the  following  chapter.  But  the  governor 
also  had  positive  influence  on  legislation,  both  direct  and  indi- 
rect. He  was  accustomed  to  send  messages  to  the  house  on 
all  manner  of  occasions,  urging  legislation  upon  specific  mat- 
ters, showing  particulars  in  pending  legislation  to  which  he 
should  refuse  consent.  Moreover,  at  the  beginning  of  each 
session  and  on  other  important  occasions  he  would  summon 
the  house  to  the  council  chamber  and  make  an  address  to  the 
joint  assembly,  summarizing  the  military  situation  if  it  were  a 
time  of  war,  imparting  information,  especially  letters  from  the 
hom.e  government  or  other  colonies,  recommending  certain  mat- 
ters for  their  consideration,  (frequently  the  "low"  condition  of 
the  treasury,  or  the  "distressing"  state  of  the  currency),  with  a 
view  to  legislation. —  as  it  were  a  speech  from  the  throne.  These 
speeches  were  at  first  informal.  For  example,  Stoughton  on  one 
occasion  directed  the  attendance  of  the  house  in  the  council  cham- 
ber and  recommended  to  their  consideration  the  "public  state  of 
the  province,"  touching  the  war,  the  lack  of  money  in  the  treas- 
ury, the  expiration  of  certain  acts  which  should  be  continued.^ 
After  Bellomont's  arrival  the  procedure  became  more  formal ; 
the  governor  gave  his  speech  in  writing  to  the  house  after  deliv- 


'  Court  Records,  VI.  450.     This  is  the  name  used  to  designate  the 
manuscript  records  of  the  council,  when  acting  in  its  legislative  capacity. 


26  CONSTITUTIONAL   CONFLICT 

ery,  and  received  their  formal  answer.^  Its  influence  on  their 
action  was  little  more  than  that  of  a  president's  message  of  the 
present  day  to  a  Congress  having  an  opposition  majority.  On 
party  issues  his  recommendations  were  ignored,  on  other  matters 
an  insistent  public  opinion  could  obtain  concurrent  action  by 
governor  and  house. 

The  governor's  indirect  influence  on  legislation  was  prob- 
ably considerable,  varying  with  his  personality.  He  presided  in 
council  in  both  legislative  and  executive  sessions,  and  his  proper 
constitutional  domination  in  the  council,  when  sitting  in  its  exec- 
utive capacity,  must  have  given  his  opinions  great  weight  with 
the  same  body  when  legislating.  Bellomont  and  Dudley  assumed 
a  position  of  leadership  in  the  council's  legislative  deliberations ; 
Bellomont  concerning  himself  in  debates,  proposing  bills  and  other 
business,  preventing  their  action  in  his  absence  except  as  a  com- 
mittee of  the  whole ;  Dudley  forcing  business  to  suit  himself  and 
dominating  men  of  weaker  will.-  This  right  of  interference  in 
council  was  claimed  and  exercised  by  the  governors  throughout 
the  provincial  period,  notwithstanding  an  adverse  opinion  deliv- 
ered by  the  law  officers  of  the  crown."^ 

By  charter  an  absolute  veto  was  conferred  upon  the  gov- 
ernor, upon  all  acts  of  the  general  court,  whether  legislative  or 
elective.  Hence  we  may  regard  him  as  not  only  influencing  the 
upper  house,  but  as  constituting  by  himself  a  third  house  of  the 
legislature.  The  use  of  this  veto  was  not  sparing,  but  was  infre- 
quent because  unnecessary.  Non-concurrence  by  council,  under 
the  governor's  influence,  of  objectionable  measures  of  the  house, 
sifted  legislation  very  thoroughly,  and  the  resulting  number  of 
actual  refusals  of  consent  is  surprisingly  small,  considering  the 
frequent  differences  of  opinion.  There  was  a  considerable  body 
of  possible  legislation  to  which  the  board  of  trade  instructed  the 
governor  to  refuse  his  consent,  and  the  expectation  of  that  veto 
undoubtedly  prevented  the  useless  passage  of  repugnant  meas- 
ures.* The  time  during  which  the  governor  might  consider  bills 
was  not  fixed  in  the  charter  or  instructions.  As  the  veto  was 
not  a  suspensive  one,  to  be  overridden  by  an  extraordinary  major- 


'  E.  g.,  Feb.  14,  1701.    Court  Records,  VII.  144. 

"  Sewall's  Diary,  5  Mass.  Hist.  Soc.  Collections.  VII.  47. 

'  Chalmers.   Opinions,   238. 

*E.   g..   Court  Records,   VII.  415. 


IN    PROVINCIAL    MASSACHUSETTS.  2/ 

ity,  the  importance  of  the  time  of  the  veto  appears  in  the  possi- 
bility that  the  house  could  compel  the  attachment  of  his  signature 
to  favorite  measures  by  withholding  his  allowance.  They  were 
accustomed  to  put  off  the  consideration  of  such  allowance  until 
the  last  day  or  two  of  the  session,  when  presumably  the  leg- 
islative and  elective  acts  of  the  assembly  had  been  completed 
by  the  governor's  signature,  which  was  usually  afifixed  shortly 
after  the  concurrence  by  the  council.  The  house  tried  to 
establish  the  principle  that  signatures  should  always  precede 
allowance,  but  vigorous  protest  was  made  by  the  governor,  with 
final  success.  In  the  salary  settlement  of  1735  it  was  agreed  that 
his  allowance  should  be  granted  at  the  beginning  of  the  session. 
As  Greene  has  pointed  out  for  the  provinces  in  general,^ 
the  powers  of  the  governor  which  brought  him  into  connection 
with  the  judiciary,  were  of  three  sorts.  By  the  charter  he  was 
to  constitute  courts  of  justice,  and  to  appoint  judges,  while 
by  statute  he  was  given  some  judicial  functions  to  perform. 
But  as  to  the  extent  of  these  powers  Massachusetts  differed 
from  other  provinces.  The  power  to  erect  courts  was  exercised 
by  the  general  court,  which  by  a  series  of  statutes-  (after 
repeated  disallowance  and  modified  repassage)  established  a 
system  of  common  law  courts,  and  in  this  establishment  the 
governor  participated  merely  as  one  branch  of  the  legislature.  A 
chancery  court,  however,  being  peculiarly  for  the  exercise  of  the 
king's  super  judicial  prerogative,  was  not  allowed  to  be  set  up 
by  the  colonial  legislature.  Several  attempts  were  made  to  give 
equity  jurisdiction  to  the  governor  (or  chancellor  appointed  by 
the  governor)  and  eight  of  the  council,^  later  to  three  commis- 
sioners appointed  by  the  governor  and  council  ;■*  but  these  acts 
were  disallowed,  Attorney-general  Northey  being  of  opinion  that 
the  queen  could  set  up  an  equity  court  in  Massachusetts,  but  the 
general  court  could  not  do  so  by  the  terms  of  the  charter.^  Phobate 
jurisdiction,  on  appeal  from  the  county  probate  judges,  was  given 
by  statute**  to  the  governor  and  council.     Further  statutory  juris- 


^  Greene,  Provincial  Govei-nor,  Chapter  VII. 

'Act  1692-3,  c.  33;  1697,  c.  9;  1699-0,  cc.  1,  2,  3,  4;  1701-2,  cc.  5,  6,  7. 

'Act  1692-3,  c.  33,  §  14. 

'Act  1693-4,  c.  12. 

°  Chalmers,  Opinions,  195. 

"Act  1696,  c.  8. 


28  CONSTITUTIONAL   CONFLICT 

diction  of  the  same  body  was  over  cases  of  marriage  and  divorce/ 
cases  of  embezzlement  by  regimental  officers,  with  power  to  im- 
pose fines  and  to  imprison,-  and  cases  of  creditors'  petitions,  with 
power  to  issue  commissions  of  bankruptcy.^  Admiralty  jurisdic- 
tion was  supervised  by  the  governor  through  his  special  commis- 
sion as  vice-admiral,  though  after  1702  the  vice-admiralty  court 
was  held  by  a  judge  appointed  by  the  crown. 

But  the  appointing  and  commissioning  of  judicial  officers 
was  the  chief  function  which  brought  the  governor  into  connec- 
tion with  judicial  affairs.  Here,  as  in  most  of  his  executive 
functions,  he  was  controlled  by  the  advice  and  consent  of  the 
council.  It  was  the  settled  policy  of  the  home  government  that 
judicial  offices  in  the  colonies  should  be  held  not  on  good  be- 
havior but  during  pleasure.'*  Tenure  of  office  was  generally 
permanent,  removals  being  very  rare.  As  all  commissions  be- 
came inoperative  upon  a  demise  of  the  crown,  and  as  it  not 
infrequently  happened  that  the  new  sovereign  sent  a  new  gov- 
ernor, there  was  considerable  opportunity  for  executive  policy 
to  impress  itself  upon  the  judiciary  by  appointment,  without  the 
abuse  of  arbitrary  removals.  Belcher  was  the  only  governor 
with  a  bad  name  on  this  account.  He  maintained  that  the  change 
of  governor  had  the  same  eft'ect  in  terminating  commissions  as 
the  change  of  sovereigns,  and  took  the  opportunity  to  make 
sweeping  changes  in  the  personnel  of  the  judiciary  to  serve  his 
own  purposes,  but  this  example  was  not  followed  by  later  gov- 
ernors.^ 

But  the  most  characteristic  functions  of  the  governor  were 
executive.  Besides  his  duty  in  general  to  see  to  the  enforcement 
of  the  law,  all  governmental  matters  which  were  not  regulated 
by  legislation  were  for  the  governor  and  council  to  attend  to. 
The  description  of  this  field  was  accomplished  mostly  in  the  char- 
ter, by  the  withdrawal  of  certain  things  from  the  competence  of 
the  legislature,  to  an  extent  also  through  the  delegation  of  func- 


'Act  1692-3,  c.  25. 
"Act  1701-2,  c.  14. 
'Act  1713-4,  c.  14. 
*  Greene,   Provincial   Governor,   134-6. 

"  Shirley  attempted  it,  but  readily  gave  up  the  point  upon  the  refusal 
of  the  council  to  join.     Hutchinson,  II.  336,  note. 


IN    PROVINCIAL    MASSACHUSETTS.  29 

tions  by  the  legislature,  and  also  by  the  imposition  of  duties 
from  without.  The  provincial  period  saw  the  legislature  grad- 
ually encroaching  upon  this  field,  attempting  either  to  transfer 
a  function  from  the  governor  to  itself,  or  to  control  him  in  its 
exercise. 

The  administrative  powers  of  the  governor  were  of  the  sort 
which  was  customary  in  that  office.^  The  appointment  of  civil 
officers  by  the  executive  was  far  less  extensive  in  Massachusetts 
than  in  other  provinces,  however,  for  the  charter  secured  to  the 
general  court  the  right  to  select  ail  except  those  pertaining  to 
the  courts,^  an  exception  which  the  legislature  confined  as  nar- 
rowly as  possible,  as  the  following  chapter  will  show.  But  even 
when  thus  limited,  the  exercise  of  the  appointing  power  seemed 
likely  at  first  to  fall  into  the  hands  of  the  council,  the  popular 
part  of  the  executive.  Under  Phips^  and  Stoughton  the  council 
assumed  the  right  to  elect  even  the  above  mentioned  judicial 
officers,  leaving  to  the  governor  only  the  right  of  confirmation 
or  refusal.  With  the  coming  of  Bellomont,  however,  this  error 
was  corrected  and  the  initiative  was  reassumed  by  the  governor."* 
Bellomont  and  all  subsequent  governors  named  the  officers,  and 
the  function  of  the  council  was  reduced  to  the  evident  intention 
of  the  charter,  mere  acceptance  or  rejection. 

One  of  the  chief  sources  of  the  governor's  power  in  admin- 
istration, as  described  in  the  charter,  was  his  right  to  order  the 
issue  of  money  from  the  treasury.  The  claim  of  the  house  to  a 
primal  and  superior  control  over  the  issue  of  warrants  is  so 
important  for  the  constitutional  relations  of  governor  and  house 
that  a  separate  chapter  is  devoted  to  its  discussion. 

By  statute,  miscellaneous  administrative  functions  were  be- 
stowed upon  the  governor,  to  be  exercised  with  the  advice  and 
consent  of  the  council,  principally  in  the  form  of  licensing  the 
performance  of  certain  acts  which  needed  administrative  con- 
trol, e.  g.,  the  erection  of  wooden  buildings  within  the   Boston 


^  Greene,   Chapter  VI. 

"  "Judges  Commissioners  of  Oyer  and  Terminer  Sheriffs  Provosts 
Marshalls  Justices  of  the  Peace  and  other  Officers  to  Our  Councill  and 
Courts  of  Justice  belonging."     Acts  and  Resolves,  I.  12. 

^  Executive  Council   Records,  II.  206. 

*  Executive  Council   Records,   III.  41. 


30  CONSTITUTIONAL   CONFLICT 

fire  limits/  the  carrying  on  of  trade  with  the  Eastern  Indians,- 
the  removal  of  inhabitants  from  the  frontier  towns  in  time  of 
war.''  The  court  was  also  inclined,  especially  in  the  early  part 
of  the  period,  to  use  the  governor  and  council  for  other  pur- 
poses, such  as  the  appointment  of  impost  commissioners,*  and 
truck-masters  for  the  Indian  trade,'^  but  it  later  preferred  to 
perform  such  functions  directly. 

The  issuance  of  ordinances,  a  quasi-legislative  power,  was 
necessarily  in  the  hands  of  the  governor  and  council,  to  be  used 
in  cases  of  emergency,  as  supplementary  to  legislation  by  the 
general  court.  It  was  also  used  by  special  grant  in  advance  by 
the  court,  but  very  slightly,  and  less  and  less  as  time  went  on. 
The  court  was  inclined  to  do  by  itself  all  the  legislating  that 
needed  to  be  done,  leaving  as  little  as  possible  to  the  dreaded 
executive.  The  right  to  issue  proclamations  belonged,  of  course, 
to  the  executive,  but  it  was  a  question  how  far  the  exercise  of 
that  power  could  be  controlled  by  the  court.  Fasts  and  thanks- 
givings were  proclaimed  by  the  governor  by  the  advice  and  con- 
sent of  the  council,  usually  at  the  express  desire  of  the  house. 
Indeed,  during  the  first  eight  years  such  days  were  set  apart  by 
regular  legislative  resolve,  originated  by  the  house,  concurred  in 
by  the  council,  consented  to  by  the  governor.  But  after  1701 
this  irregularity  was  avoided  until  1721,  when,  in  the  midst  of 
the  controversy  with  Shute,  the  representatives  (March  16)  or- 
dered a  committee  to  join  with  a  committee  of  the  council  in 
preparing  a  proclamation  for  a  fast  day.  The  council,  in  its 
legislative  capacity,  non-concurred,  and  declared  that  such  par- 
ticipation by  the  house  was  contrary  to  precedent.  In  its  exec- 
utive capacity  the  board  had  prepared  a  proclamation  which  it 
declared,  "will  be  communicated  to  the  House."  But  the  repre- 
sentatives insisted  on  actively  participating,  saying  "that  if 
appointment  of  such  days  has  not  the  sanction  of  the  Court, 
persons  are  not  liable  to  be  punished  if  they  work  or  travell 
thereon,   which   will   tend  to  a  great   disorder.""     The   council 


'Act  1692-3,  c.  13. 

'Act  1713-4,  c.  13. 

"  Act  1694-5,  c.  25. 

*Act  1692-3,  c.  5. 

'  Act  1699,  c.  13. 

'Court  Records,  XI.  115. 


IN    PROVINCIAL    MASSACHUSETTS.  3I 

again  supported  its  position  by  argument,  and  announced  that 
the  governor,  with  the  advice  of  the  council  "and  at  the  instance 
of  the  House,"  had  ordered  proclamation  of  a  fast.  The  house 
protested  that  it  had  "made  no  such  instance,  but  voted  a  com- 
mittee, to  join  with  a  committee  of  the  Honorable  Board  to  pre- 
pare the  draft  of  such  a  proclamation."  But  in  spite  of  this 
protest  the  proclamation  was  issued  as  an  executive  act.  In  June 
of  the  same  year  the  house  voted  that  "13  July  be  appointed  as 
a  day"  of  fasting,  "and  that  His  Excellency  be  desired  to  issue 
out  a  proclamation  accordingly,"  an  evidence  that  the  house  had 
given  up  its  claim.  The  assumption  of  the  house  figured  in  Shute's 
complaints  to  the  home  government,  and  the  law  officers  of  the 
crown,  as  might  have  been  expected,  declared  that  the  house  had 
no  right  to  participate  in  the  governor's  function  of  issuing 
proclamations. 

Together  with  these  miscellaneous  administrative  duties  of 
the  governor  as  executive  head  of  the  province  may  be  mentioned 
a  few  that  came  to  him  as  the  imperial  agent.  He  was  instructed 
to  urge  certain  matters  of  policy  upon  the  assembly,  acting,  as 
it  were,  in  the  capacity  of  imperial  adviser  in  legislation.  He  was 
also  made  responsible  in  a  general  way  for  the  execution  in  his 
colony  of  the  parliamentary  acts  of  trade  and  navigation.  Be- 
ginning with  the  administration  of  Bellomont,  he  was  instructed 
that  forfeiture  of  office  and  other  marks  of  the  king's  displeasure 
would  be  the  consequence  of  failure  to  observe  these  acts,  so 
far  as  was  due  to  his  wilful  fault  or  neglect.  All  officers  of  the 
admiralty  and  customs  therefore  were  to  receive  from  him  due 
encouragement.^  He  was  to  watch  over  the  king's  interest  in 
forest  trees  that  were  fit  for  masting  the  royal  navy.^  Other 
instructions^  requiring  him  to  transmit  a  census  of  planters,  of 
inhabitants,  slaves,  etc.,  and  a  yearly  account  of  their  increase 
and  of  the  number  fit  to  bear  arms,  together  with  a  particular 
account  of  the  defences  of  the  province,  illustrate  the  function  of 
the  governor  as  the  home  government's  general  source  of  infor- 
mation. 

The  governor  was  military  head  of  the  province.  It  was 
by  him  that  militia  officers  were  appointed  and  commissioned, 

^Bellomont's  43d  instruction. 

'  Bellomont's  additional  instruction  of  Jan.  19,  1700-1. 

'  Dudley's  39th  and  60th  instructions. 


32  CONSTITUTIONAL   CONFLICT 

and  the  militia  commanded.  In  time  of  war,  with  a  regular 
military  force  in  existence,  whether  raised  by  impressment  of 
militia  or  by  voluntary  enlistment,  the  governor  was  commander- 
in-chief,  with  power  to  build  fortifications,  to  impress  men  and 
ships  and  other  property,  to  administer  military  law  by  com- 
missioning courts  martial,  and,  most  important,  to  direct  mili- 
tary operations.  Here  he  was  free  from  the  control  of  the  coun- 
cil, except  as  to  the  commissioning  of  courts  martial.  In  all 
these  matters,  how-ever,  his  nominal  legal  freedom  of  discretion 
was  subject  to  qualifications.  How  far  the  need  of  money  to 
carry  on  military  operations  necessitated  co-operation  of  the  tax- 
granting  body,  and  consequently  subjected  him  to  its  dictation, 
is  so  large  a  matter  as  to  require  treatment  in  a  special  chap- 
ter. The  navy  of  the  province  was  a  very  slight  affair,  usually 
no  more  than  a  galley  or  snow,  but  it  also  was  under  the  gov- 
ernor's command,  as  was  the  royal  war-ship  stationed  at  Boston, 
though  the  subordination  was  not  clearly  recognized  in  the  latter 
case,  and  friction  easily  resulted,  as  in  the  case  of  Phips  and 
Captain  Short  of  the  Rose  frigate.^ 

Charged  with  these  various  functions,  legislative,  judicial, 
administrative  and  military,  the  governor  was  subject  to  limita- 
tions and  checks  from  various  quarters.  In  practically  all  his 
functions  which  were  not  military,  the  governor's  action  required 
the  advice  and  consent  of  the  council,  a  body  in  whose  consti- 
tution popular  election  played  a  large  part.  By  his  veto  the  gov- 
ernor could  exclude  therefrom  men  who  were  personally  or  polit- 
ically obnoxious,  but  having  no  initiative  in  its  appointment  he 
could  not  secure  the  aid  of  men  whom  he  desired,  if  they  were 
displeasing  to  the  house.  Naturally  the  council  tended  to  be- 
come a  colorless  body,  without  positive  influence  on  the  governor's 
action,  but  providing  a  conservative  force  which  would  keep  him 
from  unpopular  extremes. 

The  chief  positive  force  which  acted  on  the  governor  w^as  the 
home  government,  on  which  he  depended  for  appointment  and 
continuance  in  office.  Through  his  commissions  and  instructions 
and  the  more  informal  communications  of  the  secretary  of  state 
and  the  board  of  trade  he  was  constantly  in  receipt  of  their  sug- 
gestions and  commands,  positive  and  negative.     The  chief  nega- 


'  Palfrey,  IV.  147. 


IN    PROVINCIAL    MASSACHUSETTS.  33 

tive  force  which  operated  on  the  governor,  so  as  to  Hmit  his 
opportunity  and  capacity  to  follow  the  positive  pressure  from 
home  was  the  house.  As  will  be  seen  in  chapters  V,  VI,  and 
VII,  the  hold  of  the  house  upon  the  province  purse-string  meant 
that  in  divers  ways  they  were  able  to  win  a  considerable  measure 
of  control  over  his  action  in  the  performance  of  his  peculiar 
functions,  legislative  and  financial,  and  even  administrative  and 
military.  The  governor's  actual  course  of  conduct  was  the  result- 
ant of  all  these  forces,  positive  and  negative,  and  varied  with  the 
degree  of  pressure  applied  from  home  or  from  the  house. 

The  governor's  personal  character  also  was  of  influence  in 
determining  the  strength  of  resistance  or  of  co-operative  force 
he  could  offer  against  outside  pressure.  The  situation  demanded 
an  almost  impossible  combination  of  qualities.  In  the  first  place, 
under  the  spoils  system  of  appointment,  a  certain  amount  of  "inter- 
est" with  the  great  ones  about  the  court  must  be  possessed  by  an 
individual  before  he  could  be  considered  as  a  candidate  for  the  gov- 
ernorship. This  was  likely  to  mean  either  that  he  was  an  ex-soldier 
whose  services  could  thus  be  rewarded  in  a  cheap  currency,  like 
Phips  or  Burgess  or  Shute, —  and  here  there  was  little  likelihood 
of  his  possessing  the  qualities  of  a  successful  administrator ;  or 
that  he  was  a  courtier,  skilled  in  the  arts  of  flattery  and  self- 
promotion,  perhaps  with  political  morals  not  stern,  but  easily 
adaptable,  like  Belcher,  and  in  a  less  degree  Dudley.  Massa- 
chusetts, however,  suffered  far  less  than  other  provinces  from  the 
spoils  system.  Not  a  single  one  of  her  governors  played  the  role  of 
a  plundering  proconsul  to  her  pecuniary  loss,  and  her  two  ex- 
soldiers,  Phips  and  Shute,^  were  faithful  to  their  duty,  accord- 
ing to  their  blundering  comprehension  of  it.  Belcher  and  Dud- 
ley were  self-seeking  in  their  ambitions,  but  both  were  Massa- 
chusetts men,  and  tried  to  serve  themselves  through  serving,  not 
"disserving,"  the  province. 

Two  qualities  must  be  sought  among  those  who  had  suffi- 
cient "interest"  to  be  regarded  as  candidates, —  efficiency  and 
amiability.  The  governor  should  be  an  able  man,  to  conduct  the 
administrative  and  military  affairs  of  the  province  successfully, 
to  keep  the  province  true  to  its  allegiance  and  dependence  on  the 


^  Burgess  soon  after  appointment  sold  his  commission  for  a  thousand 
pounds,  and  never  came  to  Massachusetts. 
3 


34  CONSTITUTIONAL   CONFLICT 

crown,  and  turn  Massachusetts  to  some  account  to  England  in 
trade  or  as  a  producer  of  raw  materials  for  her  manufacture;  and 
he  must  be  resolute  to  thwart  the  attempts  of  the  house  to  en- 
croach on  the  prerogative,  preserving  the  dual  nature  of  the  gov- 
ernment, with  the  governor  as  a  branch  co-ordinate  with  the 
house.  But  at  the  .same  time  he  should  be  personally  or  politically 
agreeable  to  the  province,  in  order  that  their  willing  co-operation 
might  be  secured  in  defence,  that  their  natural  tendency  to  en- 
croach on  the  ofifice  might  be  checked  by  personal  regard  or  re- 
spect for  the  incumbent,  that  something  positive  might  be  ob- 
tained from  them  in  legislation,  in  conformity  with  imperial 
desires  of  uniformity  and  efficiency  in  administration  among  the 
various  provinces.  Four  of  the  ten  men  appointed  governor  were 
natives  of  the  province  —  Phips,  Dudley,  Belcher  and  Hutchinson 
—  and  Shirley  had  identified  himself  with  it  by  a  residence  of  ten 
years.  Including  his  term  and  the  time  that  lieutenant-govern- 
ors were  acting  governors,  the  province  was  under  the  command 
of  a  Massachusetts  man  about  sixty  out  of  the  eighty-two  years  of 
the  period.  True,  the  politics  and  not  the  nativity  of  the  gov- 
ernor was  the  essential  thing,  and  the  native-born  governors  en- 
countered more  hostility  on  the  average  than  the  foreign,  their 
prerogative  principles  adding  an  element  of  grieved  disappoint- 
ment to  the  popular  dislike  of  the  governor  qua  governor.  But 
still  the  appointment  of  a  native  was  a  sign  that  the  home  govern- 
ment desired  to  secure  able  service  by  men  who  presumably  would 
know  the  conditions  and  have  at  heart  the  real  interests  of  the 
province,  upon  the  understanding  that  the  real  interests  of  the 
province  required  its  close  dependence  upon  England. 

Of  the  Englishmen  sent  over,  Bellomont  was  a  liberal,  who 
took  the  popular  side  in  the  Leisler  controversy  in  New  York ; 
and  while  in  Massachusetts  he  identified  himself  with  the  Puritan 
party. ^  Moreover,  his  social  position  flattered  the  province's 
sense  of  importance.  Shute  was  a  Dissenter,  brother  of  Lord 
Barrington,  and  therefore  acceptable  to  the  province,  as  was  Bur- 
net for  being  son  of  the  famous  bishop. 

The  degree  of  efficiency  secured  in  the  Massachusetts  gov- 
ernors was  at  least  as  great  as  was  the  average  among  the  prov- 
inces.   Bellomont  and  Shirley  were  distinct  successes,  and  without 


'Hutchinson,  II.  106-7. 


IN    PROVINCIAL    MASSACHUSETTS.  35 

doubt  Burnet  would  have  given  the  province  an  administration  sat- 
isfactory to  all  concerned  had  he  not  been  forced  by  the  circum- 
stances of  precisely  that  time  to  come  to  a  deadlock  with  the 
general  court  on  the  salary  question.  Each  one  of  these  three 
had  previous  administrative  experience,  Bellomont  at  home  and 
in  New  York,  Burnet  in  New  York,  Shirley  as  naval  officer  in 
Boston.  Dudley,  as  former  ally  of  Andros  and  as  supporter  of  the 
prerogative  his  father  would  have  opposed,  was  disagreeable  to 
the  people,  and  utterly  failed  in  two  or  three  policies  which  he 
urged  the  court  to  accept ;  but  he  made  an  excellent  reputation 
in  civil  and  military  administration.  He  had  served  as  president 
of  the  Council  of  New  England  in  1686,  as  chief  justice  in  New 
York,  and  later  as  lieutenant-governor  of  the  Isle  of  Wight ;  but 
apparently  he  always  held  before  his  eyes  the  governorship  of  his 
native  Massachusetts  as  the  position  which  he  most  desired. 
Belcher's  "servile  and  flattering  tone  to  those  above  him  . 
his  arbitrary  manner  to  those  under  him,"^  both  used  for  the 
purpose  of  winning  for  himself  place  and  power,  had  no  good 
results  for  the  province  or  for  the  empire ;  therefore  he  can 
hardly  be  called  a  success,  especially  considering  his  willing- 
ness to  compromise  the  salary  question,  which  during  his  ad- 
ministration was  settled  adversely  to  the  contention  of  the  home 
government ;  nevertheless  he  did  win  a  victory  for  the  prerogative 
upon  the  claim  of  the  house  absolutely  to  control  issues  from  the 
treasury.  Phips,  by  reason  of  ignorance  and  lack  of  self-control, 
and  Shute,  for  lack  of  tact  and  patience  and  resolution,  must  both 
be  accounted  failures,  though  in  neither  case  was  there  lack  of 
good  intention  to  serve  the  empire  and  incidentally  the  province. 
Shute  was  unfortunate  in  winning  the  cordial  enmity  of  Elisha 
Cooke,  for  several  years  the  unquestioned  leader  of  the  popular 
party ;  thus,  in  his  case,  a  personal  spite  was  added  to  the  political 
struggle, .  and  Shute's  administration  saw  nearly  all  the  consti- 
tutional disputes  raised  and  intermingled,  and  little  progress  made 
in  settling  or  disentangling  them.  The  ill-success  of  Pownall  and 
Bernard  in  dealing  with  the  questions  which  arose  in  their  admin- 
istrations belongs  rather  to  revolutionary  history  than  to  this 
study  of  the  province ;  and  Hutchinson  also,  while  admirably 
equipped  for  the  position  as  administrator,  came  at  a  time  wher) 


^  C.  C.  Smith,  in  6  Mass.  Hist.  Soc.  Collections,  VI.  xxii. 


36  CONSTITUTIONAL    CONFLICT 

the  peaceful  adjustment  of  differences  was  no  longer  possible,  and 
when  the  situation  demanded  a  man  of  force. 

The  governor's  council  may  properly  be  described  among 
prerogative  bodies,  though  its  attitude  was  somewhat  variable, 
as  will  be  seen  in  the  accounts  of  the  salary  and  treasury  con- 
troversies. It  sat  at  times  as  a  legislative  body,  combining  with 
the  house  and  governor  to  form  the  general  court ;  at  other  times 
as  an  executive  body,  advising  and  consenting  to  the  governor's 
executive  acts.  But  what  made  it  a  peculiar  institution  was  its 
elective  character.  Not  appointed  by  the  king  on  nomination  by 
the  governors,  as  in  most  provinces,  the  council  in  Massachusetts 
was  constituted  through  annual  election  by  the  general  court ;  this 
as  all  other  acts  of  that  body  being  subject  to  the  governor's  veto. 
The  election  was  by  joint  ballot  held  on  the  last  Wednesday  in 
May,  by  a  court  composed  of  the  council  of  the  past  year  and  the 
newly  elected  house.  The  procedure  in  the  election  was  regulated 
by  province  law.  The  charter  of  1691  named  the  council  for  the 
first  year,  Mather  having  the  privilege  of  making  out  the  list ;  but 
thereafter  by  charter  provision  eighteen  of  the  twenty-eight  mem- 
bers were  to  be  inhabitants  or  proprietors  of  land  in  what  had  been 
the  Massachusetts  Bay  Colony,  four  in  the  old  Plymouth  Colony, 
three  in  what  had  been  the  Province  of  Maine,  and  one  in  the  ter- 
ritory called  Sagadahoc,  to  the  east  of  the  Kennebec  river.  The 
remaining  two  were  elected  "at  large,"  usually  from  the  old  Bay 
Colony.  The  election  was  at  first  from  a  double  list,  nominated  ap- 
parently by  informal  ballot  ;^  but  from  Sewall's  reference  to  the 
election  of  1695  —  "voted  but  for  eighteen  at  first"^  —  it  would  ap- 
pear that  nomination  of  a  double  list  was  soon  dispensed  with. 
This  was  natural,  considering  that  the  election  was  usually  a 
mere  re-election  of  the  former  council,  and  a  double  list  would  be 
inconvenient  and  useless.  An  attempt  by  the  house  in  1703  to 
require  a  majority  vote  for  every  councillor,  was  thwarted  by 
Ducjley's  veto.  The  governor's  power  of  vetoing  councillors- 
elect  was  used  but  sparingly.  Only  one  was  rejected  during  the 
first  ten  years.  Dudley,  it  is  true,  at  his  first  opportunity  in  1703, 
rejected  five,  and  at  other  times  evidenced  in  this  way  the  opinion 

*  Acts  and  Resolves,  VII.  15. 
'  Sewall's  Diary,  I.  406. 


IN    PROVINCIAL    MASSACHUSETTS.  37 

which  he  expressed  in  a  letter  home,  September  15,  1705  :  "It  is 
every  day  more  apparent  that  nothing  will  proceed  well  here  till 
her  Majesty  will  please  to  name  her  own  council,  the  best  men 
in  the  province  can  have  no  share  in  the  civil  government  till 
then."^  But  in  all  the  first  forty  years  of  the  provincial  period 
there  were  only  twenty-four  cases  of  veto  on  council  election, 
and  five  of  these  were  on  Elisha  Cooke  and  six  on  Nathaniel 
Byfield  on  various  occasions.  These  men  were  repeatedly  chosen 
by  the  assembly  and  rejected  by  the  governor,  for  what  was  from 
one  point  of  view  patriotic  opposition,  from  the  other  factious 
obstruction. 

If  the  governor  could  veto  a  patriot,  the  succeeding  house 
could  drop  a  prerogative  man ;  yet  the  house  was  very  moderate  in 
its  exercise  of  this  political  control.  For  example,  after  the  stub- 
born contest  between  the  two  houses  on  the  salary  question, 
the  house  dropped  only  four  of  the  preceding  council,  which  was 
no  great  change  in  a  body  numbering  twenty-eight.  Yet  this  was 
the  most  striking  case  until  the  revolutionary  time. 

The  influences  of  the  governor  and  house  would  combine  to 
keep  in  the  council  men  of  moderate  opinions  and  to  exclude  ex- 
tremists. Inevitably  this  moderation,  which  enabled  one  to  keep 
in  office  betvv'een  the  two  fires,  must  have  degenerated  in  some 
cases  into  insignificance.  Yet  on  the  whole  this  body  contained 
a  good  proportion  of  the  substantial  men  of  the  province,  men 
whose  wealth  and  powers  of  judgment  gave  them  weight  in  the 
community.  The  council  became  the  conservative  body,  the 
bufiFer  between  the  contending  governor  and  house.  Unless 
special  offence  was  given  to  the  one  or  the  other,  the  councillor 
was  fairly  sure  of  a  permanent  tenure  of  office.  Emoluments 
were  inconsiderable.  The  five  shillings  a  day,^  (after  1726,  ten 
shillings),^  was  only  paid  during  the  session  of  the  general  court; 
the  councillor's  executive  services  were  unpaid.  But  he  enjoyed 
exemption  from  certain  burdens  of  private  citizens,  such  as  the 
poll  tax,*  and  training.'^ 


'Palfrey,' IV.  255. 

=  Acts  and  Resolve?,  I.   100. 

^Ibid,  II.  406. 

'Act  1692-3,  c.  4. 

'Act  1693-4,  c.  3.  §  12. 


38  CONSTITUTIONAL    CONFLICT 

Membership  in  the  council  was  not  regarded  as  incompatible 
with  the  holding  of  judicial  or  executive  office.  Not  to  speak  of 
military  officers,  of  whom  there  were  always  several  in  the  council, 
special  commissioners  for  various  executive  purposes  —  commis- 
sary, diplomatic,  and  financial  —  were  frequently  members  of  the 
council;  also  many  of  the  judges  of  the  superior  and  inferior 
courts.  The  governor  was  always  present  in  council  meetings, 
both  executive  and  legislative.  It  was  a  question  whether  the  other 
two  crown  officers  —  lieutenant-governor  and  secretary  —  were 
not  ex  officio  members  of  the  council  and  entitled  to  vote.  Hutch- 
inson^ cites  a  minute-  of  the  board  of  trade,  adopted  just  before 
the  charter  passed  the  seals,  to  prove  that  such  was  the  intention 
of  the  home  government.  Such  also  was  the  practice  in  the  old 
regime  before  1686.  Accordingly,  during  the  first  year  of  the 
charter  Lieutenant-governor  Stoughton  sat  and  voted  in  council, 
though  not  named  a  councillor.  But  in  1693  the  assembly  chose 
to  prepare  for  the  possible  exclusion  of  future  lieutenant-govern- 
ors or  secretaries  who  might  be  obnoxious,  and  proceeded  to  elect 
the  then  incumbents  of  those  offices  to  the  council.  Accordingly, 
it  was  supposed  to  be  by  virtue  of  their  election  and  not  ex  officio 
that  Stoughton  and  Addington  long  served  in  council.  Stough- 
ton's  successors  —  Povey,  Tailer,  and  Dummer  —  were  accus- 
tomed to  attend  the  council,  but  did  not  vote  except  in  those  years 
in  which  they  had  also  been  elected.  Phipps,  the  lieutenant-gov- 
ernor in  1730,  was  forbidden  by  Belcher  even  to  sit  in  the  council 
unless  elected.  In  1767  Lieutenant-governor  Hutchinson,  hith- 
erto active  in  council  by  virtue  of  repeated  election,  was  dropped 
out  by  the  house.  In  the  second  session  of  that  year  the  house  made 
formal  protest  against  his  being  allowed  to  act  or  even  sit  in  coun- 
cil, and  they  won  their  point. ^ 

The  functions  of  the  council  need  little  description.  It  shared 
the  executive  functions  of  the  governor,  and  the  legislative  of  the 
house.  As  a  part  of  the  executive,  it  was  a  miniature  privy  council. 
Most  of  the  governor's  non-military  acts  required  their  "advice  and 
consent,"  a  passive  function  in  which  they  had  no  initiative.  They 
were  expected  only  to  prevent  the  governor  from  making  an  inex- 


^  Hutchinson,  III.  174. 

^  Trade  Journal,  August  20,  1691,  Lieutenant-Governor  to  have  first 
place  in  the  council  "and  at  all  times  to  have  a  vote  there." 
"Hutchinson,   HI.    175. 


IN    PROVINCIAL    MASSACHUSETTS.  39 

pedient  use  of  his  discretionary  powers,  or  from  unconstitutional 
stretches  of  them.  This  sort  of  business  was  miscellaneous  and 
very  various ;  for  besides  the  ordinary  functions  of  appointing 
civil  ofificers,  warranting  the  issue  of  money  from  the  treasury, 
and  executing  functions  created  by  legislative  act,  it  was  to  in- 
clude the  meeting  of  emergencies,  the  performance  of  all  acts  of 
government  not  otherwise  provided  for. 

The  council  might  do  executive  business  at  any  time,  at 
any  n'-eeting  called  by  the  governor,  with  the  charter  restriction 
that  special  notice  seven  days  previous  must  be  given  when  judicial 
officers  were  to  be  appointed.  Such  were  called  "general  council" 
meetings,  but  had  no  other  special  power  or  importance.  A  quo- 
rum of  seven  was  required  by  charter,  but  the  average  attendance 
w'as  twice  that  number,  except  during  recesses  of  the  general 
court,  when  the  members  from  Boston  and  vicinity  w^ere  the  main 
reliance  for  forming  a  quorum.  The  usual  place  of  meeting  was 
the  "council  chamber"  in  the  Boston  Town  House,  but  the  gov- 
ernor might  call  it  whatever  he  chose,  e.  g.,  at  his  own  house, 
or  infrequently  in  other  parts  of  the  province  when  the  public 
business  took  him  away  from  Boston.  Its  organization  as  an  ex- 
ecutive body  was  under  the  governor  as  chairman  and  the  province 
secretary  as  clerk.  It  made  frequent  use  of  committees  to  expedite 
business,  standing  committees  on  war  and  debentures,  occasional 
committees  on  other  matters  that  arose. 

In  case  of  the  incapacity,  by  death  or  otherwise,  of  both  gov- 
ernor and  lieutenant-governor,  it  was  provided  by  charter  that 
the  council  should  be  the  executive,  to  "have  full  power  and 
authority  ...  to  do  and  execute  all  and  every  such  acts, 
matters  and  things  which  the  said  governor  .  .  .  could  law- 
fully do."^  On  March  15,  1701,  Governor  Bellomont  died,  and 
Lieutenant-governor  Stoughton,  on  July  7.  For  eleven  months,  till 
Dudley's  arrival  in  June,  1702,  the  council  was  the  chief  execu- 
tive. Wait  Winthrop  presided,  though  not  the  senior  member, 
but  all  documents  requiring  the  governor's  signature  were  signed 
by  at  least  fifteen  (a  majority)  of  the  council;  that  is,  neither 
its  senior  member  nor  its  president,  but  the  council  itself  in  its 
corporate  capacity,  was  administering  the  government.  It  was 
a  time  of  quiet,  and  no  important  occurrences  tested  the  efficiency 


^  Acts  and  Resolves,  I.  19. 


40  CONSTITUTIONAL   CONFLICT 

of  this  system.  But  in  1707  a  general  instruction  was  issued  by 
the  queen  that  in  such  cases  the  senior  councillor  should  be  chief 
executive.  Nevertheless,  in  a  similar  case  in  1715,  it  was  the 
council  as  a  whole  that  assumed  the  government,  regarding  the 
province  charter  as  superior  even  to  the  later  general  instruction. 
The  interregnum  was  short  (February  4  to  ]\Iarch  21)  and  had 
been  caused  by  a  mere  accident  —  the  loss  at  sea  of  the  new  com- 
missions necessitated  by  the  demise  of  the  crown.  For  control- 
ling the  council  in  such  cases,  provision  was  made  in  the  instruc- 
tion^ that  "the  said  council  shall  forbear  to  pass  any  acts  but  what 
are  immediately  necessary  for  the  peace  and  welfare  of  our  said 
province  without  our  particular  order  for  that  purpose.'' 

The  legislative  power  of  the  council  was  theoretically  equal 
with  that  of  the  house.  Its  concurrence  was  necessary  to  the 
validity  of  any  act  or  vote  of  the  general  court.  It  will  be  seen 
below  that  in  matters  financial  the  house  claimed  a  pre-eminent 
power,  attempting  to  push  the  council  down  into  the  position  of 
the  house  of  lords ;  denied  an  initiative  and  confined  to  consenting 
or  rejecting.  Moreover,  since  councillors  could  be  rejected  by 
a  subsequent  house,  they  were  individually  careful  not  to  oppose 
popular  measures  too  strongly  or  to  become  too  manifestly  identi- 
fied with  the  prerogative  interest.  For  this  reason  the  council  was 
politically  weaker  than  the  house.  On  most  matters  short  of  a  con- 
stitutional issue,  however,  the  two  houses  stood  on  an  equal 
footing.  Moreover,  this  inclination  to  yield  to  the  house  was 
largely  overcome  by  the  governor's  presence  in  the  council,  pre- 
siding or  taking  part  in  debate.  Dependent  on  the  house  for 
election,  they  were  also  dependent  on  the  governor  for  confirma- 
tion, and  the  nearer  influence  was  the  more  powerful.  Greater 
experience  in  public  affairs  gave  weight  to  the  contribution  of 
the  council  to  legislation,  especially  in  the  framing  of  laws  and 
the  provision  of  administrative  details.  Many  important  meas- 
ures were  even  originated  in  the  council  and  concurred  in  by 
the  house,  or  were  framed  by  a  joint  committee  of  the  two  houses. 
Now  and  then,  from  differences  between  them,  an  utter  deadlock 
ensued,  especially  in  the  days  of  Shute  and  Burnet,  or  a  bill  was 
passed  through  all  its  stages  in  one  house  and  was  voted  down 
in  the  other :  but  more  frequently,  after  one  or  two  readings  in 


'  e.  g.,  Dudley's,  3  Mass.  Hist.  Soc.  Collections,  IX.  115. 


IN    PROVINCIAL    MASSACHUSETTS.  4I 

one  house,  it  would  be  introduced  in  the  other.  Messages  would 
pass  from  one  house  to  the  other,  offering  amendments,  insisting 
on  clauses.  Usually  a  compromise  of  differences  was  thus  ef- 
fected, often  by  conference  committees,  occasionally  by  conference 
between  the  two  houses. 

The  governor's  council  then  was  a  very  different  thing  from 
the  board  of  assistants  which  it  superseded,  notwithstanding  their 
superficial  resemblances  as  upper  house,  executive  council,  and 
judicial  tribunal.  The  significance  of  the  assistants  as  the  depos- 
itary of  the  peculiar  Massachusetts  tradition  had  passed  by  a 
gradual  but  inevitable  transition  to  the  house.  The  change  in 
the  suffrage  qualification  based  political  power  upon  property, 
not  church  membership,  and  it  was  the  propertied  people  in  their 
representative  house,  not  the  allied  clergy  and  magistrates  speak- 
ing with  authority  through  a  board  of  assistants,  that  was  to 
guide  the  destinies  of  Massachusetts.  This  tendency  was  in- 
creased by  the  partial  absorption  of  the  council  by  the  prerogative 
interest,  which  necessarily  separated  it  as  a  body  from  the  polit- 
ical mind  of  Massachusetts,  in  the  eighteenth-century  conflict  of 
the  two  opposing  principles.  From  the  colonial  point  of  view 
it  degenerated  in  two  respects.  It  lost  to  the  house  its  character 
of  a  representative  of  the  Massachusetts  tradition,  becoming  a  mere 
"other  house,"  unprogressive,  opposed  to  constitutional  progress ; 
it  had  also  gone  over  to  the  enemy,  supporting  the  governor, 
urging  obedience  to  the  instructions  of  the  home  government. 
From  the  imperial  point  of  view  it  was  a  convenient  instrument 
for  introducing  a  prerogative  element  into  the  legislature  of  the 
province ;  but  its  elective  mode  of  constitution  much  diminished 
its  usefulness,  made  it  weak  in  opposing  the  house  and  vacillating' 
in  its  support  of  the  governor. 


CHAPTER  IV.   THE  POPULAR  HOUSE. 

Massachusetts  possessed  an  advantage  over  many  of  the 
provinces,  in  that  she  did  not  have  to  evolve  a  representative  body 
to  counteract  the  prerogative  elements  in  her  constitution.  Long 
before  the  crown  had  a  governor  there,  the  province  had  a  rep- 
resentative house.  The  conflict  which  came  was  not  in  the  char- 
acteristic English  form  of  popular  encroachment,  gradual  and 
tentative,  upon  the  crown,  but  in  the  form  of  an  invasion,  by  the 
governor  acting  for  the  crown,  of  the  popular  monopoly  of  gov- 
ernmental power,  an  invasion  that  was  met  by  a  resistance  which 
combined  all  the  strength  of  Massachusetts  seventeenth-century 
tradition  and  precedent  with  the  inevitably  growing  idea  of  self- 
government. 

At  the  time  of  the  planting  of  the  colony,  legislative  func- 
tions, as  well  as  administrative  and  judicial,  were  performed  by 
the  assistants ;  the  great  ones  of  the  community,  essentially  an 
aristocratic  body,  though  dependent  upon  popular  election.^  Dur- 
ing the  first  five  years,  however,  after  Watertown  had  made  its 
protest  against  taxation  for  purposes  to  which  it  had  given  no 
consent,  we  see  the  development  of  a  new  body,  whose  peculiar 
function  it  should  be  to  represent  the  towns  individually,  which 
should  speak  the  mind  of  the  people  of  the  colony,  while  the 
assistants  were  the  voice  of  the  Massachusetts  Bay  Company.  It 
is  true,  the  identity  of  company  and  colony  was  the  essential  fact 
of  the  Massachusetts  colonial  constitution,  but  so  far  as  there 
were  two  separate  ideas,  company  and  colony,  each  had  its  char- 
acter emphasized  in  one  of  the  two  bodies  whose  combined  action 
as  the  general  court  was  that  of  Massachusetts.  Beginning  as 
a  mere  occasional  body  of  conferees  or  town  committees  for  ad- 
vising the  assistants  and  assenting  to  taxation,  it  came  soon  to 
permanent  self-consciousness  as  a  house,  co-ordinate  with  the 
board  of  assistants  in  legislation  and  finance,  exercising  some 
control  over  even  the  judicial  and  administrative  discretion  of 
the  assistants. 


'  Osgood,  The  American  Colonies,  I.  167. 

(42) 


IN    PROVINCIAL    MASSACHUSETTS.  43 

Under  the  old  charter  to  some  degree,  and  yet  more  under 
the  new,  the  house  of  deputies,  or  representatives,  was  the  seat 
of  the  country  party,  of  radicaHsm  (or,  at  least,  of  progress)  as 
opposed  to  the  conservatism  of  the  council ;  of  democracy  against 
the  aristocracy  of  property  and  intellect  there  embodied.  But 
more  important  politically  was  the  change  wrought  by  the  charter 
of  1691  in  the  character  of  the  latter  body — from  the  magis- 
trates of  the  corporation  to  the  governor's  council.  However  far 
the  council  actually  was  from  the  prerogative  body  it  was  de- 
signed to  be,  that  very  design  necessitated  the  assumption  by 
the  house  of  the  important  function  for  which  the  council  would 
now  be  regarded  as  incapacitated, —  that  of  representing  the  pop- 
ular will  against  the  encroachments  of  royalty.  The  peculiar 
ecclesiastico-political  tradition  of  Massachusetts,  as  received  from 
the  fathers  and  to  be  continued  to  future  generations,  the  tradition 
of  a  self-determined  church-state  polity,  the  Calvinistic  common- 
wealth, must  from  now  on  be  preserved  by  the  house,  since  the 
imperialized  council  was  no  longer  fit  to  bear  that  responsibility ; 
the  importance  of  the  house  was  thereby  very  considerably  en- 
hanced. 

By  the  charter  provision  of  checks  and  balances  the  house 
was  made  dependent  in  a  number  of  respects  upon  the  royal  gov- 
ernor. It  was  upon  his  summons  alone  that  a  house  could  meet. 
This  function  could  be  exercised  by  him  at  his  discretion,  so  that 
he  could  at  all  times  make  use  of  the  advice  and  assistance  in 
government  of  the  representatives  of  the  people.  On  the  other 
hand,  he  might  not  dispense  with  their  meeting,  nor  keep  a  favor- 
able house  in  long-continued  existence  by  mere  prorogation;  for 
the  charter  required  annual  elections.  As  to  their  privileges  while 
meeting,  they  appear  at  first  to  have  supposed  these  to  be  de- 
pendent upon  the  governor's  will ;  for  on  June  8,  1692,  the  house 
presented  its  speaker  to  him  and  asked  the  customary  privileges 
of  freedom  of  debate,  access  to  the  governor,  freedom  from  arrest, 
"which  they  expected  as  their  due,"  and  which  Phips  freely 
granted  them.^  But  this  was  never  again  asked  of  the  governor ; 
presumably  it  was  not  after  this  regarded  as  dependent  on  his 
will. 


'  Court  Records,  VI.  223. 


44  CONSTITUTIONAL   CONFLICT 

The  power  of  dissolving  the  house  was  unquestionably  in 
the  governor,  to  be  exercised  by  word  of  mouth  in  the  presence 
of  the  assembly,  or  more  frequently  by  proclamation.  It  must 
be  used  every  April  to  make  room  for  a  newly  elected  house. 
Obviously  dissolution  was  a  means  by  which  the  governor  could 
get  rid  of  a  refractory  house,  and  as  such  it  was  sometimes  used, 
e.  g.,  by  Shute  in  1720  and  1721.  But  this  was  infrequent,  for 
the  reason  that  the  public  business  would  necessitate  a  new  elec- 
tion, and  hence  the  governor  could  gain  by  such  action  only  in 
case  the  house  did  not  possess  the  confidence  of  the  electorate. 
As  elections  were  annual,  this  was  unlikely,  and  the  chance  was 
that  dissolution  would  help  rather  than  hinder  the  opposition,  as 
tending  to  increase  the  exasperation  of  house  and  people  against 
the  governor. 

The  power  of  adjourning  the  general  court  was  given  to  the 
governor  without  limitation  of  time  and  place.  In  both  of  these 
respects  encroachment  was  attempted  by  the  house  in  its  desire 
to  have  absolute  control  of  its  own  action.  As  a  matter  of  course 
each  house  adjourned  itself  from  day  to  day  and  over  Sunday, 
by  the  governor's  tacit  consent.  On  a  very  few  occasions  the 
house  attempted  to  stretch  this  power.  For  example,  in  1693 
the  house  adjourned  from  Friday,  the  17th  of  November,  to 
Tuesday,  the  21st,  many  of  its  members  being  necessarily  en- 
gaged in  committee  work.  Of  this  Governor  Phips  manifested 
his  resentment  as  "an  intrenchment  on  the  king's  prerogative" 
and  the  governor's  power. ^  The  representatives  sent  a  com- 
mittee on  the  2 1st  "to  acknowledge  their  mistake  in  attempting 
an  adjournment  of  their  house  without  his  Excellency's  consent 
and  craved  his  pardon,  declaring  that  they  should  be  cautious 
for  future  of  any  such  practice."  Much  the  same  thing  hap- 
pened under  Shute  in  1721,  when,  because  of  a  Fast  Day  inter- 
vening on  Thursday  and  owing  to  the  inconvenience  of  returning 
to  business  for  Friday  only,  the  house  presumed  to  adjourn  itself 
from  Wednesday,  July  12,  to  the  following  Tuesday.  Shute  re- 
buked them  when  they  came  together  again,  reminding  them  of  the 
precedent  from  Phips's  time,  showing  them  the  council's  unani- 
mous opinion  of  the  irregularity  of  their  conduct.  'T  am  sensible 
you  have  been  amused  by  some  sort  of  men  as  if  this  adjourn- 


'  Court  Records,  VI.  309. 


IN    PROVINCIAL    MASSACHUSETTS.  45 

ment  were  a  branch  of  your  privileges  and  liberties  and  so  ought 
not  to  be  parted  with,  but  sure  no  just  or  thinking  man  that 
reads  the  constitution  of  this  government  as  granted  by  the 
charter  can  be  of  that  opinion."^  After  some  evasion  the  house 
was  brought  to  the  still  somewhat  equivocal  declaration,  on  July 
20,  that  they  "do  entirely  confess  and  acknowledge  that  by  royal 
charter  Your  Excellency  the  Governor  for  the  time  being  have 
the  sole  power  and  authority  to  adjourn  prorogue  and  dissolve 
the  General  Court  and  the  House  further  acknowledge  that  Your 
Excellency  ought  to  have  been  acquainted  with  the  design  and 
intention  of  the  House  .  .  .  before  they  did  so  adjourn,  and 
that  it  was  then  so  designed,  but  was  casually  omitted  ;"^  as  if 
the  governor's  power  were  only  over  the  court  as  a  whole,  not 
excluding  the  supposed  right  ol  the  house  to  adjourn  itself.  He 
dissolved  the  court  in  anger.  This  whole  question  was  set  at 
rest  by  the  explanatory  charter  of  1725,  in  the  following  terms: 
Whereas  by  the  charter  of  1691  "no  power  is  granted"  to  the 
house  "to  adjourn  themselves  for  any  time  whatsoever  .  .  . 
it  shall  and  may  be  lawful  to  and  for  the  Representatives  .  .  . 
to  adjourn  themselves  from  day  to  day  (and  if  occasion  shall 
require)  for  the  space  of  two  days  but  not  for  any  longer  time 
.  .  .  without  leave  from  the  Governor  first  had  and  obtained."^ 
The  further  question  arose  whether  the  governor's  power  of 
adjournment  included  the  determination  of  the  place  of  meeting, 
obviously  a  matter  touching  more  nearly  the  convenience  and 
freedom  of  the  house ;  for  removal  might  be  not  only  for  hygienic 
reasons,  to  escape  contagion,  but  also  for  political  reasons,  to 
harrass  the  house  into  action  or  remove  them  from  the  influ- 
ence of  a  certain  community.  Now  all  details  of  the  manner 
in  which  the  governor  should  exercise  his  right  of  summons  were 
determined  by  a  law  of  the  province,  for  want  of  charter  provi- 
sion or  executive  assumption  of  that  regulation,  and  in  the  law 
establishing  the  form  for  the  writs  of  election,  the  town  house 
at  Boston  was  mentioned  as  the  place  of  meeting.  Here  were 
kept  the  province  records,  and  custom  regarded  it  as  the  capital 
of  the  province.  Upon  this  basis  the  house  made  its  claim  against 
Dudley  in  1702,  Shute  in  1721,  and  Burnet  in  1728-9,  and  in  a 

^  Court  Records,   XI.   195. 

==Ibid,  198. 

'Acts  and  Resolves,   I.  23. 


46  CONSTITUTIONAL    CONFLICT 

more  notable  case  against  Hutchinson  in  1770,  that  Boston  was 
the  only  legal  place  of  meeting,  and  hence  any  change,  for  example 
to  escape  the  small-pox  epidemics,  which  were  not  infrequent  there, 
required  an  act  of  the  legislature  of  equal  formality  with  the 
original  act  —  a  pure  denial  of  the  governor's  right.  That  act 
of  1693,  however,  showed  on  its  face,  as  the  governors  were  not 
slow  to  point  out,  that  the  writ  in  the  act  was  signed  by  'T.  A." 
(the  initials  of  the  then  secretary),  that  it  was  issued  by  the  sheriff 
of  Suffolk  County,  and  was  addressed  only  to  the  selectmen  of 
Boston,  and  that  therefore  "those  words  in  the  writ"  (estab- 
lishing the  Boston  town  house  as  the  place  of  meeting)  "were 
mere  form  and  like  other  words  in  it  exempli  gratia  only."  The 
strength  of  the  position  of  the  house,  we  must  therefore  conclude, 
was  not  in  law,  but  rather  in  the  custom  of  the  province  in  favor 
of  Boston,  which  ought  to  be  broken  only  for  some  extraordinary 
reason,  and  then  by  the  legislature. 

In  August  of  1 72 1  the  house  and  council  passed  a  vote  to 
which  the  governor  refused  his  consent:  Resolved,  on  account 
of  the  small-pox  raging  in  Boston,  "that  the  present  Great  and 
General  Court  or  Assembly  be  removed  to  Cambridge  .  .  . 
to  such  time  as  His  Excellency  thinks  fit."  Shute  expressed  him- 
self as  willing  to  grant  the  removal  by  executive  act  at  the  request 
of  the  court,  but  said,  "It  will  be  giving  up  the  King's  preroga- 
tive to  consent  to  the  adjournment  in  the  form  it  was  sent  up." 
Neither  the  governor  nor  the  house  would  yield,  and  therefore  the 
session  quickly  came  to  an  end.  The  court  was  summoned  to  meet 
for  its  next  session  at  Cambridge.  At  once  the  governor  announced 
"that  the  present  method  for  removing  the  court  from  Boston 
should  not  be  made  a  precedent,"  and  "that  he  should  be  willing 
that  the  court  should  take  any  proper  method  to  make  valid  the 
meeting  of  the  court  here,  if  it  were  doubted  to  be  regular  and 
legal. "^  This  the  house  apparently  regarded  as  a  complete  sur- 
render to  its  contention.  The  result  was  the  following  resolve : 
"That  the  Great  and  General  Court  or  assembly.  Shall  and  may 
be  Now  held  at  Cambridge,  .  .  .  and  that  No  Exception 
or  advantage  shall  be  taken  hereby  Respecting  the  power  of  Re- 
moving the  General  Court  from  place  to  place."^     Nevertheless 

'  Court  Records,  XL  240. 
'Acts  and  Resolves,  X.  120. 


IN    PROVINCIAL    MASSACHUSETTS.  4/ 

Hutchinson  says^  that,  "by  this  equivocal  vote  the  governor  imag- 
ined that  he  had  preserved  his  authority  entire."  Upon  the  gen- 
eral reference  to  the  lav/  officers  of  the  crown  concerning  mat- 
ters in  dispute  between  Shute  and  the  house,  an  order  in  coun- 
cil was  passed  in  conformity  with  their  opinion,  "that  the  sole 
power  of  ...  .  adjourning  the  General  Court  .... 
either  as  to  the  time  or  place  is  in  His  Majesty's  Governor."  The 
explanatory  charter  made  no  mention  of  this  matter. 

In  1728  the  governor's  exercise  of  his  right  was  opposed  with 
more  reason.  Burnet,  exasperated  by  the  sympathy  of  the  Bos- 
ton people  with  the  refusal  by  the  representatives  to  establish  a 
salary,  and  especially  by  a  resolution  to  that  effect  passed  in 
town-meeting,  removed  the  court  to  Salem,  frankly  avowing  his 
reason,-  hoping  that  they  would  now  mianifest  a  better  temper,  and 
be  more  obedient  to  the  instruction.  The  representatives  in  an  in- 
jured tone  declared  that  they  should  carry  their  sentiments  and 
reasons  with  them  wherever  they  should  be  obliged  to  meet.  Ap- 
parently they  admiitted  the  governor's  power  to  remove ;  for,  while 
declaring  immediately  that  they  conceive  the  court  cannot  without 
its  consent  be  removed,  yet,  lest  advantage  be  taken  of  their  non- 
appearance, reserving  to  the  province  the  benefit  of  the  law  fixing 
the  place,  they  "do  not  refuse  meeting  His  Excellency  at  the  time 
and  place  aforementioned,"  i.  e.,  at  Salem.  Again  they  conceded 
the  governor's  right  in  their  earnest  request  that  he  "remove  the 
court  to  Boston."  But  two  weeks  later,  after  attending  to  mis- 
cellaneous business,  they  made  their  formal  protest.  They  be- 
lieved that  the  act  establishing  writ-forms  required  the  assembly 
to  be  at  Boston  and  could  be  changed  only  by  the  legislature. 
They  made  much  of  the  fact  that  Shute  in  1721  had  consented 
to  a  legislative  resolve  validating  the  proceedings  at  Cambridge. 
Burnet  made  complete  answer  to  their  protest,  and  of  necessity 
they  proceeded  to  business.  In  hearings,  before  the  board  of  trade, 
of  matters  in  dispute  between  Burnet  and  the  house,  the  Massa- 
chusetts agents  represented  the  adjournment  to  Salem  as  unreas- 
onable and  a  hardship,  "using  his  power  in  a  very  absolute  way," 
but  did  not  charge  it  with  illegality."  In  the  following  session,  Au- 
gust, 1729,  Burnet  had  the  satisfaction  of  reading  to  the  court 

'Hutchinson,  III.  300. 

=  Court  Records,  XIV.   183-7. 

'  Palfrey,  IV.  519,  note. 


48  CONSTITUTIONAL   CONFLICT 

the  report  of  the  board  of  trade,  approved  by  the  privy  council, 
that  the  question  of  adjournment  had  been  determined  previously 
in  favor  of  Shute,  and  that  the  present  governor's  action  had  been 
agreeable  to  that  determination.^  The  matter  had  been  argued  in 
Massachusetts  in  April,  the  council  this  time  entirely  upholding  the 
governor's  contention  against  the  house.-  In  the  same  month  the 
governor  adjourned  the  court  to  Cambridge,  where  it  was  sitting 
when  his  death  put  an  end  to  their  disputes.  The  governor  cer- 
tainly had  legal  right  on  his  side,  but  considering  the  breach  of 
custom  and  the  inconvenience  to  the  house  of  meeting  in  any 
other  place  than  Boston,  it  should  have  required  an  extraordinary 
occasion  to  justify  the  use  of  that  right.  Moreover,  the  use  of 
it  with  Burnet's  motive  would  seem  to  have  been  the  height  of 
unwisdom,  since  it  only  increased  the  exasperation  of  the  house, 
already  sufficiently  opposed  to  granting  a  salary,  to  be  harrassed 
from  place  to  place  to  bend  it  to  his  will. 

It  was  this  body  of  precedents  then  to  which  Lieutenant- 
governor  Hutchinson  and  the  house  could  refer  in  1770,  when  the 
question  came  up  once  more  on  his  calling  the  assembly  at  Cam- 
bridge instead  of  Boston.  Their  refusal  to  do  business,  the  new 
argument  of  the  house  against  removal  (viz.,  that  it  was  based 
on  an  unconstitutional  instruction)  when  used  in  connection  with 
the  old  ones  revived,  and  the  different  outcome  in  this  revolu- 
tionary time,^  are  anomalous  circumstances  not  to  be  treated  in 
this  account  of  the  workings  of  the  provincial  system.  It  is  only 
necessary  to  remark  that  here  is  another  instance  of  the  prepara- 
tion which  the  provincial  period  was  making  for  the  revolution- 
ary, setting  against  each  other  the  antagonistic  elements  in  the 
constitution,  and  developing  their  respective  attack  and  defence. 

The  form  of  the  popular  representative  body  had  not  to  be 
evolved  by  a  process  of  experiment  or  adaptation,  but  was  found 
ready  to  hand.  The  house  of  deputies  of  the  colonial  period  be- 
came the  provincial  house  of  representatives,  an  experienced 
body,  with  customs  and  traditions  of  its  own,  whose  power  was 
hardly  at  all  weakened  by  the  Andros  interregnum,  when  the  lack 
of  a  representative  house  was  simply  part  of  a  regime  which  was 
regarded  as  wholly  unconstitutional. 

'Court  Records,  XIV.  264. 
^  Court  Records,  XIV.  233-6. 
'  Hutchinson,  III.  282-300. 


IN    PROVINCIAL    MASSACHUSETTS.  49 

One  of  the  most  striking  innovations  of  the  new  charter,  in 
appearance  at  least,  was  the  change  in  the  suffrage  qualification. 
The  church  membership  test  was  abandoned,  and  in  its  place  was 
substituted  a  property  qualification,  the  familiar  forty-shilling 
freehold  of  the  county  members  of  parliament,  or  the  possession 
of  other  estate  of  the  value  of  fifty  pounds.^  The  original  sug- 
gestion of  the  board  of  trade  had  been  a  property  requirement  of 
one  hundred  pounds,  which  was  modified  to  fifty  after  a  conference 
between  the  attorney-general  and  the  agents,  a  concession  to  dem- 
ocracy. The  new  qualification  shifted  the  balance  of  forces.  It  did 
not  perhaps  involve  a  very  great  w  idening  of  the  suffrage,  though 
the  forty-shilling  freehold  was  a  fairly  low  limit  for  a  commu- 
nity of  small  farmers  of  relatively  equal  economic  position ;  but 
the  change  was  important  in  that  it  shifted  the  basis  of  participa- 
tion in  things  political  from  the  spiritual  to  the  economic  domam. 
It  was  a  plain  sign  that  the  Calvinistic  commonwealth  had  be- 
come an  English  province,  its  peculiarity  as  a  people  had  vanished, 
its  community  and  sympathy  with  other  English  colonies  was  rec- 
ognized, a  change  fraught  with  great  significance  for  the  latter 
part  of  the  eighteenth  century. 

For  eligibility  to  the  house  the  charter  required  only  that  the 
representative  be  a  freeholder.  The  requirement  of  residence  in 
the  constituency,  destined  to  become  so  characteristic  of  the  Amer- 
ican representative  system,  came  in  only  by  statute,  and  then  it 
would  seem  almost  by  accident,  to  serve  a  temporary  purpose. 
Governor  Phips  found  himself  opposed  by  a  knot  of  Boston  men 
in  the  house,  who  represented  distant  towns  which  could  ill  afford 
the  expense  of  sending  men  from  home.  To  get  rid  of  this  oppo- 
sition Phips  urged  the  passage  of  an  act-  requiring  that  the  rep- 
resentatives be  freeholders  "and  resident"  in  the  towns  for  which 
they  stood.  This  is  subject  here  to  the  usual  criticism  that  it 
meant  a  loss  of  strength  to  the  house,  since  the  frontier  communi- 
ties were  far  less  able  than  the  metropolis  to  produce  statesman- 
ship.   The  interests  of  the  community  represented  were  relatively 


^  The  editor  of  the  Province  Laws  has  shown  the  error,  by  which 
the  word  "forty"  was  substituted  for  "fifty"  in  the  duplicate  of  the  charter 
sent  to  America,  an  error  repeated  in  many  later  reprints  of  the  charter. 
Acts  and  Resolves,  I.  363. 

'Act   1693-4,   c.   14. 
4 


50  CONSTITUTIONAL    CONFLICT 

of  less  consequence  than  those  of  the  colony  as  a  whole,  and 
hence  there  was  less  need  of  accurate  local  acquaintance  with  the 
constituency.  However,  this  system  resulted  in  making  the  house 
a  more  truly  representative  body.  The  mingling  of  men  from 
all  parts  of  the  province,  the  exchange  of  views,  the  reaction  upon 
all  parts  of  the  province  of  the  doings  and  deliberations  of  the 
house,  meant  much  in  the  preparation  for  a  time  when  the  cor- 
respondence between  constituents  and  their  members  at  the  cen- 
ter was  suddenly  to  blossom  into  a  system  of  Committees  of  Cor- 
respondence, which  could  disseminate  ideas  rapidly  throughout 
the  province  and  produce  simultaneous  co-operative  action,  coun- 
teracting the  otherwise  excessive  localism  of  the  towns  and  pro- 
ducing a  provincial  community  of  sentiment.  The  house  of  the 
eighteenth  century  was  a  really  representative  body,  in  a  sense 
inapplicable  to  the  house  of  the  seventeenth  century,  or  to  the 
commons.  Representation  was  based  on  economic  standing  in 
the  community,  not  on  church  membership ;  and  while  the  latter 
had  originally  meant  the  solid,  reliable  elements  of  the  commu- 
.nity,  in  a  degenerate  time  it  was  running  the  risk  of  involving 
hypocrisy  and  fraud,  and  was  coming  to  mean  priestly  domina- 
tion of  an  undesirable  sort.  The  influence  of  aristocratic  nomi- 
nation and  actual  corruption,  which  so  strongly  affected  the  com- 
mons of  the  eighteenth  century,  was  not  to  be  found  on  this  side 
of  the  Atlantic.  With  all  its  crudeness  and  ignorance  of  political 
science  and  of  the  principles  of  legislation,  with  all  its  pettiness 
and  faction  in  dealing  with  the  policy  of  the  home  government,  the 
Massachusetts  house  was  at  least  truly  representative,  speaking 
the  mind  of  its  principals. 

The  unit  of  representation  in  the  house  was  the  town.  Since 
1639  each  town  had  been  entitled  to  two  delegates,  and  this  gen- 
eral plan  was  continued  in  the  charter  of  1691,  with  power  in 
the  general  court  to  make  apportionment.  There  was  substantial 
equality  between  the  towns ;  but  some  regard  was  paid  to  pro- 
portion in  the  provision  by  which  every  town  of  40  or  more  elec- 
tors must  send  one  representative,  of  120  or  more  might  send 
two,  of  30  to  40  might  or  might  not  send  one  at  its  option ;  while 
towns  with  less  than  30  electors  might  join  with  other  towns  in 
choosing  and  supporting  a  representative.  Exception  was  made 
of  Boston,  which  as  the  metropolis  might  have  four  representa- 
tives.    The  custom  was  for  every  house  to  be  composed  of  four 


IN    PROVINCIAL    MASSACHUSETTS.  5I 

from  Boston  and  one  each  from  seventy  or  eighty  other  towns 
(a  growing  number),  with  two  representatives  each  from  three 
or  four  of  the  large  coast  towns,  as  Salem,  Ipswich,  and  Newbury. 
These  delegates  were  elected  in  open  town-meeting,  and  repre- 
sented the  towns  in  their  corporate  capacity.  Yet  they  together 
formed  a  provincial  legislature,  based  on  the  people  of  the  prov- 
ince as  a  whole  and  capable  of  expressing  its  unified  will ;  that  is, 
they  were  not  mere  delegates  confined  as  to  opinion  and  powers 
to  the  instructions  from  their  towns. 

The  house  was  the  sole  judge  of  its  membership.  The  repre- 
sentatives might  "settle  order  and  purge"^  their  house  and  "make 
necessary  orders  for  the  due  regulation  thereof."  They  expelled 
a  member  in  171 5  for  scandalous  immoralities,  and  at  times  ex- 
cluded military  officers."  Fines  were  imposed  for  unexcused  non- 
attendance,  and  the  house  journal  is  full  of  requests  by  individual 
representatives  that  they  be  excused  absence  on  such  and  such 
days  for  specified  reasons.  By  such  procedure  the  quorum  of 
forty  was  made  easy  to  obtain.  The  charter  required  the  taking 
of  the  oaths  of  William,  and  ]\Iary  which  were  substituted  for  the 
Allegiance  and  Supremacy  Oaths,  and  the  Declaration  against 
transubstantiation.  Privilege  from  suit  or  arrest  during  the  session 
and  during  necessary  journeying  was  enjoyed  by  the  representa- 
tives ;  also  exemption  from  military  service,  constable  service,  and 
the  watch.  Since  their  pay  came  ultimately  from  the  town  repre- 
sented, economy  was  a  motive  with  some  towns  for  slighting  the 
duty  of  electing  a  deputy,  at  a  time  when  the  towns  were  so  poor 
as  to  feel  the  burden,  and  before  political  agitation  had  made  rep- 
resentation a  privilege  to  be  coveted  and  used  to  the  fullest  extent. 
Pay  was  set  at  three  shillings  per  diem  during  the  time  of  attend- 
ance and  necessary  journeying,^  but  was  later  changed  as  the  cur- 
rency depreciated  to  four  shillings,*  six  shillings,^  and  to  two  shil- 
lings new  tenor.^  It  was  paid  from  the  province  treasury  and 
then  assessed  upon  the  province  tax  due  from  the  town.  This 
practice  of  making  the  pay  of  the  representative  automatic  and 


'  Act  1692-3,  c.  38. 

'  E.  g.,  Moodey,  a  "commander  of  soldiers  in  pay,"  July,  1720. 

^-Act  1692-3,   c.  38. 

^Act  1714,  c.  4. 

'Act  1726-7,  c.  18. 

'  Act  1737-8,  c.  3. 


52  CONSTITUTIONAL    CONFLICT 

impersonal  was  precisely  what  the  governor  demanded  for  his 
own  support,  and  Burnet  in  1729  did  not  omit  to  call  the  attention 
of  the  house  to  its  inconsistency  in  refusing  a  salary  to  the  gov- 
ernor "for  the  time  being.  In  fact,  Burnet  withheld  his  sig- 
nature for  a  time  from  the  warrants  for  the  representatives' 
pay,  in  the  vain  attempt  to  compel  favorable  action  by  them.^ 
The  result  of  this  protest  was  the  assimilation  of  the  two  wage 
systems,  but  not  in  the  method  desired  by  Burnet.  From  now 
on,  after  the  manner  of  the  governor's  support,  the  amount 
of  the  daily  wages  of  a  representative  was  fixed  annually  by  act 
of  the  general  court. ^ 

The  organization  of  the  house,  with  the  one  exception  of  the 
speakership,  was  exclusively  subject  to  its  own  action.  Its  clerks 
and  messengers  were  elected  by  it  alone,  though  paid  by  semi- 
annual resolves  of  the  whole  court.  It  made  great  use  of  com- 
mittees, to  prepare  business  and  formulate  policy.  The  germ  of  a 
standing  committee  system  is  in  the  Committee  on  Petitions,  ap- 
pointed every  session  to  receive  and  report  on  pecuniary  claims 
against  the  province,  on  muster  rolls  and  expense  bills  of  all  sorts. 
There  was  usually  a  committee  whose  business  it  was  to  see  what 
laws  were  about  to  expire  and  needed  reviving,  and  what  amend- 
ments were  needed  in  the  law  of  the  province.  But  besides  these 
standing  committees  there  were  many  others  which  were  purely  oc- 
casional, e.  g.,  to  deliberate  on  the  governor's  messages  and  draft 
replies ;  also  a  series  of  quasi-administrative  committees,  to  make 
special  inquiries,  or  to  care  for  the  execution  of  some  command 
of  the  house,  e.  g..  purchase  or  examination  of  stores  or  fortifi- 
cations, burning  bills  of  credit,  and  the  like.  An  examination  of 
the  composition  of  these  committees  reveals  the  fact  that  a  very 
few  leading  men  were  called  upon  by  the  house  to  ascertain  and 
state  its  mind  on  many  different  kinds  of  business,  indeed,  after 
the  manner  of  a  cabinet,  to  form  its  policy.  During  the  admin- 
istration of  Shute,  when  the  speaker  forsook  his  former  attitude 
of  impartial  moderator,  that  officer  was  very  frequently  a  member 
(often  chairman)  of  the  committees  appointed  to  represent  the 
house  in  its  diflferences  with  council  and  governor.  In  fact  he 
seems  to  have  developed  the  position  of  "leader  of  the  house." 


^  Court   Records,    XIV.   239. 

'Acts    1730-1.   c.    15;    1731-2,   c.    12,    etc.     Yet   this   was   occasionally 
omitted,  e.  g.,  1732-3,  1740-1,  and  regularly  omitted  after  1748. 


IN    PROVINCIAL    MASSACHUSETTS.  55 

It  was  this  possible  leadership  that  gave  significance  to  the 
question  whether  or  not  the  governor  might  veto  the  choice  of 
the  house  for  its  speaker.  The  charter  was  silent  on  the  point, 
and  during  the  first  ten  years  there  seems  to  have  been  no  sug- 
gestion of  such  a  right.  The  house  would  merely  send  a  message 
to  the  governor,  informing  him  whom  they  had  chosen.  Bello- 
mont^  "expressed  his  satisfaction"  with  their  choice,  but  that 
was  as  near  as  any  of  these  early  speakers  came  to  actual  approval 
by  the  governor.  Dudley,  however,  proceeded  to  claim  a  right 
analogous  to  that  of  the  Crown  over  the  commons.  In  1702-  and 
also  in  the  two  following  years  he  "declared  his  acceptance"  of  the 
speaker  chosen  by  the  house.  In  1705  the  choice  of  the  house 
fell  upon  Thomas  Oakes,  who  as  agent  in  England  had  opposed 
the  new  charter.  Dudley  described  him  to  the  board  of  trade^ 
as  "a  known  commonwealth's  man,  never  quiet  nor  satisfied  with 
the  government,  but  particularly  very  poor;"  and,  as  Chalmers 
says,  he  "disliked  the  government  of  England."*  Dudley  de- 
clared to  the  messengers  of  the  house  "that  he  did  not  accept  the 
election"  and  "by  virtue  of  the  power  granted  him  by  Her  Majes- 
ty's royal  commission  directed  that  the  House  proceed  to  the  choice 
of  a  new  Speaker."  The  house  insisted  on  their  choice,  standing 
on  the  act  of  1695,  already  confirmed  in  England,  which  pro- 
vided that  the  house  might  "settle  order  and  purge  their  house 
and  make  such  necessary  orders  for  the  due  regulation  thereof 
as  they  shall  see  occasion."  It  paid  no  heed  to  his  suggestion 
that  they  elect  another  man  with  a  sak'O  jure,  but  proceeded,  as 
if  already  fully  organized,  to  the  election  of  councillors,  the  nec- 
essary business  of  the  day.  The  exigencies  of  defence  absolutely 
required  a  good  understanding  between  executive  and  legislature, 
and  Dudley  dared  not  assume  the  responsibility  of  arresting  pub- 
lic business  by  insisting  at  that  time  on  his  claim  of  right.  On 
appealing  to  the  council  he  received  their  opinion,  that  "it  is  not 
in  the  governor's  power  to  refuse  the  election  of  a  Speaker  and 
direct  the  choice  of  another  by  virtue  of  the  charter."  There- 
upon he  abandoned  the  contention  and  announced  the  next  day 
that,   though   "he  is   very   well   satisfied   of   Her  Majesty's   just 


'  Court  Records,  VII.  70. 
=  Court  Records,  VII.  361. 
'  Palfrey,  IV.  295. 
*  Chalmers,  Revolt,  I.  332. 


54  CONSTITUTIONAL    CONFLICT 

right  and  prerogative  to  allow  or  disallow  a  Speaker,"  as  well 
as  the  council,  "being  all  elected  by  the  Assembly,"  yet  he 
yielded,  owing  to  the  pressing  demands  of  the  war,  "saving  to 
her  most  gracious  Majesty  her  just  rights."^  Oakes  was  again 
elected  in  1706,  but  no  record  appears  of  the  approbation  of  the 
governor.  From  now  on  the  house  was  accustomed  to  send  a 
message  "to  acquaint"  the  governor  with  its  choice,  "which  His 
Excellency  (usually)  declared  was  acceptable  to  him."- 

In  1720  the  house  chose  for  speaker  Elisha  Cooke,  who  had 
prominently  identified  himself  with  the  popular  opposition  to  the 
king's  reservation  of  mast  timber,  and  in  several  ways  had  made 
himself  very  obnoxious  to  Governor  Shute.  Upon  the  formal 
notification  to  the  governor,  "His  Excellency  answered  that  the 
said  Elisha  Cooke  had  treated  him  ill  who  is  the  King's  Gov- 
ernor and  therefore  by  virtue  of  the  power  given  to  him  by  the 
royal  charter  he  does  negative  the  said  Elisha  Cooke,  and  desires 
the  House  to  proceed  to  the  choice  of  a  new  Speaker."  The 
house  replied  that  they  "do  according  to  their  known  and  legal 
privileges  insist  on  their  choice."  xA.s  it  seemed  likely  that  the 
house  would  regard  itself  as  organized  and  proceed  to  the  election 
of  councillors,  and  would  do  so  alone  unless  the  council  were 
allowed  to  join  it,  the  governor  withdrew,  but  directed  the 
secretary  to  acquaint  the  house :  "That  he  is  informed  Governor 
Dudley  did  in  his  government  disallow  of  a  Speaker  chosen  by 
the  House  and  that  his  proceedings  herein  were  approved  by  the 
Commissioners  of  Trade  and  Plantations,  and  that  it  would  not 
be  thought  fit  that  His  Majesty's  right  of  having  a  negative 
upon  the  choice  of  a  Speaker  be  given  up,  which  was  reserved 
to  His  Majesty  as  well  by  the  charter  as  by  the  constitution  of 
England."  After  the  election  of  councillors  Shute  made  a  speech 
warning  the  house  of  the  unacceptableness  in  England  of  their 
choice  of  one  who  had  ill  treated  the  king's  governor,  for  whose 
removal  from  the  council  he  had  received  the  thanks  of  the 
board  of  trade.  He  strongly  urged  them  to  choose  another 
speaker  with  a  reservation  of  their  rights,  and  to  send  home  for 
an  explanation  of  that  part  of  the  charter.  The  house,  after 
due  deliberation,  voted  upon  the  question,  "Whether  they  shall 


^  Court   Records,   VIII.    114,   flf. 

'E.    g.,    1707.     Conn    Records,    VIII.    L'94. 


IN    PROVINCIAL    MASSACHUSETTS.  55 

proceed  to  the  choice  of  a  new  Speaker?"  and  "it  passed  in  the 
negative  nemine  contradicente."  Next  day  the  governor  dis- 
solved the  assembly,  expressing  the  hope  that  the  new  one  to 
be  elected  would  choose  for  speaker  "one  that  fears  God  and 
honors  the  King."'^  The  speaker  elected  by  the  new  house  was 
Timothy  Lindal,  a  choice  which  the  governor  declared  "was  very 
acceptable  to  him."  They  did  indeed  yield  as  to  the  person  of 
their  choice,  lest  business  be  longer  impeded ;  but  they  still  in- 
sisted on  their  rights,  declaring  that  the  assertion  and  mainte- 
nance by  the  former  house  of  their  right  and  ancient  privilege 
of  choosing  their  speaker  and  not  owning  his  Excellency's  power 
to  veto,  "was  nothing  but  what  they  were  strictly  obliged  to." 

In  1 72 1  the  second  house  (elected  on  the  early  dissolution 
of  the  regularly  elected  one)  met  August  2;^,  and  soon  sent  word 
to  Shute  that  they  had  elected  John  Clark,  "and  that  he  had 
accordingly  taken  the  chair."  The  governor  replied,  "I  accept 
of  the  choice  of  John  Clark,  Esq.,  as  Speaker  of  the  House  of 
Representatives."  But  the  house  voted  that,  while  they  had 
sent  word  "to  acquaint  His  Excellency  and  the  Honorable  Board 
with  the  choice  of  their  Speaker  it  was  done  for  their  information 
and  not  for  His  Excellency's  approbation."  Shute  replied  the 
next  day  that  the  board  of  trade  had  informed  him  of  their  con- 
viction, based  on  the  opinion  of  the  attorney-general,  that  the 
governor  has  "a  full  power  to  non-concur  in  the  choice  of  a 
Speaker  and  in  all  elections."-  As  the  house  continued  of  the 
same  opinion  as  before,  Shute  urged  them  to  state  their  case 
and  send  it  home  for  determination.^  This  was  done,  and  in  a 
general  inquiry  regarding  points  in  dispute  between  Shute  and 
the  house  this  question  was  settled.  The  law  officers  of  the  crown 
declared  that  under  the  charter  of  1691  the  right  of  the  governor 
to  veto  was  an  open  question,  the  speaker  being  an  officer  not  of 
the  general  court  but  of  the  house ;  hence,  while  Shute's  action 
was  proper,  the  right  being  one  enjoyed  by  the  king  against  the 
commons,  yet  the  action  of  the  house  was  not  a  contempt.  An 
explanatory  charter  was  accordingly  issued  August  26,  1725,  in 
which  express  power  was  given  the  governor  to  approve  or  dis- 


'  Court  Records,  XI.  3-6. 
'Ibid,  XL  201,  203. 
"  Ibid,  222. 


56  CONSTITUTIONAL    CONFLICT 

approve  the  choice  of  the  house.^  From  1722  to  1725,  iriclusive,- 
the  house  had  been  merely  announcing  to  the  Heutenant-governor 
that  such  an  one  had  been  elected  speaker  "and  is  now  sitting 
in  the  chair."  But  after  1726  it  was  the  custom  for  the  house 
to  send  a  committee  presenting  their  appointee  to  the  governor 
"for  his  approbation,"  and  for  the  governor  to  send  a  message 
in  writing  approving  of  their  choice.^ 

Powers  belonged  to  the  house  solely  as  a  branch  of  the 
general  court,  in  which  its  acts  must  have  the  concurrence  of 
the  council  and  the  consent  of  the  governor.  They  rested  on  the 
express  grant  by  the  sovereign  in  the  charter,  and  may  be  classi- 
fied as  elective,  financial,  and  legislative. 

It  was  by  the  general  court^  that  the  council  was  annually 
elected,  and  all  other  officers  not  judicial,  including  the  province 
treasurer,  war  commissioners,  excise  commissioners  for  the  prov- 
ince or  separate  counties,  commissioners  for  other  financial  func- 
tions, such  as  audit,  and  the  granting  of  debentures;  also  agents 
to  treat  with  other  colonies  or  with  the  Indian  tribes.  It  became 
a  disputed  question  between  the  appointing  governor  and  council 
and  the  electing  general  court,  whether  the  attorney-general  and 
public  notaries  were  "officers  belonging  to  the  courts  of  justice," 
and  whether  or  not  the  house  might  participate  in  their  election. 
Until  the  close  of  Dudley's  administration  it  was  supposed  that 
the  attorney-general  was  such  an  officer,  and  he  was  therefore 
appointed;  but  in  1716  Lieutenant-governor  Tailer  allowed  an 
election  to  that  office,^  by  the  general  court.  Shute  and  Dummer 
acquiesced  in  the  custom,  though  Dummer  dutifully  communi- 
cated to  the  house  a  paragraph  in  Shute's  letter  of  March  21, 
1724,  "proposing  that  a  just  regard  be  had  to  the  opinion  of 
Attorney-General  Raymond"  (in  England)  against  the  election 
of  this  officer  by  the  court.  But  the  council  readily  joined  with 
the  house  in  electing  rather  than  appointing,  and,  though  on  this 
occasion  Dummer  vetoed  the  election,  he  consented  to  their  later 
attempts  of  the  same  sort,  1725-8."     Burnet  came  instructed  to 


^  Acts   and   Resolves,   I.  22. 

'E.   g.,    Court   Records,   XII.    169. 

'E.  g.,   1726,   Court  Records,   XIII.   125. 

*  Acts  and  Resolves,  I.  12,  16. 

'  Court  Records,  X.  61. 

'Court  Records,  XII.  197-202,  378;  XIII.  181,  324;  XIV.  76. 


IN    PROVINCIAL    MASSACHUSETTS.  57 

signify  to  the  general  court  that  his  Majesty  conceived  this  nom- 
ination to  be  the  undoubted  right  of  the  governor ;  hence  he  was 
"not  to  suffer  any  person  to  act  in  that  station  but  such  as  shall 
be  nominated  by"  himself.  This  time  (June,  1729)  the  council 
sustained  him,  and  unanimously  rejected  the  proposition  of  the 
house  to  make  a  joint  election  as  hitherto.^  The  office  was  this 
time  filled  by  the  governor  and  council  through  appointment.  In 
vain  did  the  representatives  protest,  declaring  it  a  privilege 
"which  has  been  transmitted  to  them  by  their  predecessors"  and 
which  they  "ought  not  to  forgo."-  Again,  in  November  and 
December,  1729,  the  house  made  an  elaborate  and  ingenious  argu- 
ment for  what  they  claimed  as  a  right.'  They  even  requested 
the  grand  juries  to  pay  no  regard  to  bills  presented  by  an  attor- 
ney-general "v/hose  authority  was  unconstitutional  as  it  wanted 
their  concurrence."  But  the  council  made  complete  answer  to 
the  claim  of  the  house,  basing  their  claim  as  they  safely  could, 
on  the  governor's  peremptory  instruction,  and  that  point  was  lost 
by  the  house.* 

Notaries  had  derived  their  authority  from  the  Archbishop 
of  Canterbury,  but  in  July  of  1720  the  house  began  to  include 
them  among  the  public  officers  who  should  be  elected  by  the 
court.  As  the  council  did  not  accept  the  invitation  of  the  house 
to  a  joint  ballot  to  elect  notaries,  the  house  proceeded  to  elect 
them  by  its  own  votes.  When  the  time  came  for  their  being 
sworn,  the  governor  naturally  said,  as  the  council  had  not  par- 
ticipated in  the  election  "he  did  not  see  how  they  could  be 
sworn. "^  At  the  November  session  of  the  same  year,  however, 
the  council  was  brought  to  concurrence,*^  and  thereafter  appoint- 
ment of  these  officers  was  made  by  the  general  court. 

Hutchinson  regarded  this  method  of  choosing  public  officers 
by  joint  vote  as  a  defect  in  the  constitution,  since  the  council  was 
less  than  one-third  as  numerous  as  the  house,  and  hence  had 
comparatively  little  weight  except  when  the  house  was  divided 
upon  candidates.     But,  remarking  that  if  the  election  were  to  be 


'  Court  Records,  XIV.  244. 

'Ibid,  247. 

Mbid,  335-9. 

*Ibid,  XIV.  346-9. 

"Hutchinson,   II.  216. 

"Court  Records,  XL  22-30,  47,  49. 


.58  CONSTITUTIONAL    CONFLICT 

concurrent  instead  of  joint,  the  right  of  nomination  would  be 
overpowering/  he  did  not  suggest  which  house  should  have 
that  power.  The  joint  ballot  by  the  general  court  seems  to  have 
been  a  conservative  approach  to  popular  election  of  these  sub- 
ordinate executive  officers,  the  council  exerting  a  regulative  force 
in  that  choice. 

The  taxing  and  appropriating  power  was  bestowed  by  the 
charter  in  the  following  words :  the  general  court  may  "impose 
and  levy  proportionable  and  reasonable  assessments  rates  and 
taxes  upon  the  estates  and  persons  of  all  and  every  the  proprie- 
tors and  inhabitants"  of  the  province ;  this  money  to  be  issued 
from  the  treasury  upon  orders  by  the  governor  and  council  for 
defence  and  support  of  the  government  "according  to  such  acts 
as  are  or  shall  be  in  force  within  our  said  Province."^  The  man- 
ner in  which  these  powers  were  exercised,  the  degree  to  which 
the  house  excluded  the  council  from  conference  or  power  to 
amend,  the  expansion  by  the  house  of  its  power  of  control  till 
it  amounted  to  minute  regulation,  are  reserved  for  description 
in  a  separate  chapter. 

The  legislative  power^  was  granted  to  the  general  court  with 
nearly  complete  discretion  in  its  exercise.  It  might  "make  ordain 
and  establish  all  manner  of  wholesome  and  reasonable  Orders 
Laws  Statutes  and  ordinances  directions  and  instructions  either 
with  penalties  or  without  (soe  as  the  same  be  not  repugnant  or 
contrary  to  the  laws  of  this  our  realm  of  England)  as  they  shall 
judge  to  be  for  the  good  and  welfare  of  our  said  Province  or 
territory  and  for  the  good  and  ordering  thereof  and  of  the  people 
inhabiting  or  who  shall  inhabit  the  same  and  for  the  necessary 
support  and  defence  of  the  government  thereof."  Some  degree 
of  formality  was  developed  in  the  procedure  of  legislation,  every 
act  requiring  three  readings  to  pass  to  engrossment  and  enact- 
ment, the  bills  passing  from  one  house  to  the  other  between 
readings,  conferences  by  committee  or  by  joint  assembly  accom- 
modating differences  as  they  arose.  But  a  number  of  practices 
in  legislation  arose  which  seemed  undesirable  to  the  home  au- 
thorities, and  which  the  governors  were  instructed  to  prevent. 
The  first  to  attract  attention  was  the  placing  a  time  limit  on  the 


Hutchinson,   II.  298. 
'  Acts  and  Resolves,  I.  16. 
Acts   and   Resolves,    I.    15. 


IN    PROVINCIAL    MASSACHUSETTS.  59 

operation  of  acts.  For  reasons  that  will  appear  more  plainly  in 
the  discussion  of  financial  and  military  control,  the  general  court 
was  accustomed  to  limit  to  one  year  (or  other  definite  short 
period)  the  duration  of  the  tax  and  impost  acts/  also  a  whole 
body  of  legislation  corresponding  to  the  mutiny  act  at  home, 
providing  for  the  levy  and  discipline  of  soldiers,-  the  transporta- 
tion of  them  out  of  the  province,  the  offering  of  scalp  bounties. 
Moreover,  other  acts  more  or  less  experimental  in  character,  e.  g. 
offering  bounties  on  hemp  and  flax,'^  regulating  hawkers,*  swine, ^ 
the  poor,"  or  granting  monopolies,'  were  passed  for  a  period  of 
three  or  five  years,  then  perhaps  renewed  or  allowed  to  lapse,  in 
some  cases  made  perpetual.  Very  likely  there  would  have  been 
no  objection  to  this  as  mere  legislative  practice,  but  the  home 
authorities  feared  that  the  character  of  temporariness  given  to 
legislation  which  was  absolutely  necessary  to  the  executive,  was 
merely  a  cover  for  the  requirement  of  frequent  submission  of  es- 
sentially permanent  laws  to  legislative  action,  in  order  to  give  the 
house  leverage  upon  the  governor.  This  was  undoubtedly  the  case 
with  the  fiscal  and  military  laws.  Furthermore,  it  was  supposed 
that  laws  which  were  displeasing  to  the  home  government  might 
escape  disallowance  by  being  made  temporary  and  hence 
scarcely  worth  disallowing,  so  that  the  court  might  pass  these 
laws,  give  them  effect  for  a  limited  period,  and  then  pass  them 
again.  This  procedure  was  scarcely  at  all  used,  and  in  the  long 
run  ill  effects  in  any  particular  case  could  be  avoided  by  instruc- 
tion to  the  governor  to  use  his  veto.  But  it  was  apparently 
feared ;  for  Bellomont  received  an  additional  instruction®  that 
all  laws  for  the  support  of  the  province,  except  temporary  laws 
having  their  effect  within  a  certain  time,  were  to  be  made  per- 
petual, and  no  act  was  to  be  re-enacted  "except  upon  very  urgent 
occasions  but  in  no  case  more  than  once  without  His  Majesty's 
express  consent." 


'  Acts  1692-3,  cc.  4.  5. 
=  Acts  1697,  cc.  1,  -J,  5,  12,  13,  14. 
=■  Act  1701-2,  c.  13. 
'Act  1710-1,  c.  13. 
=  Act  1713-4,  c.  16. 
"  Act  1703-4,  c.  14. 
'  Act  1728-9,  c.  17. 

"  February  3,    1698-9 ;    incorporated  into   the   regular   instructions  of 
later  governors,  e.  g.,  Dudley's,  3  Mass.  Hist.  Soc.  Coll.,  TX.  105. 


6o  CONSTITUTIONAL    CONFLICT 

Less  important  constitutionally  was  the  early  practice  of 
joining  several  matters  in  one  act  which  had  little  or  no  relation 
to  each  other,  and  of  making  their  continuation  or  supplementa- 
tion in  later  acts  merely  by  reference  to  their  titles,  which  caused 
much  confusion  in  the  law  of  the  province  as  understood  in  Eng- 
land, especially  as  the  facilities  for  the  transmission  of  laws  were 
very  imperfect,  and  the  law  officers  of  the  crown  sometimes  found 
themselves  called  upon  to  advise  as  to  the  expediency  of  allowing 
an  act  which  merely  referred  by  title  to  a  number  of  former  acts, 
perhaps  not  perfectly  consistent.  This  was  the  occasion  of  the 
instruction  informally  intimated  to  Stoughton,  given  in  due  form 
to  Dudley^  and  later  governors,  that  independent  subjects  of  legis- 
lation be  not  embraced  within  the  same  act,  and  that  no  clauses 
be  inserted  relating  to  matters  not  referred  to  in  the  title ;  and 
of  a  later  instruction  (the  12th  in  the  set  issued  to  Burgess)  that 
no  act  be  suspended,  altered  or  repealed  by  general  words,  but 
only  by  express  mention.  A  further  attempt  at  regulating  the 
legislation  of  the  general  court  was  an  instruction,  appearing  first 
as  Burgess's  14th  and  continued  thereafter,  that  no  act  ''of  unu- 
sual and  extraordinary  nature  wherein  our  prerogative  or  the 
property  of  our  subjects  may  be  prejudiced"  be  passed  without 
the  royal  pleasure  previously  signified,  or  a  clause  suspending 
its  operation  till  the  royal  pleasure  be  known.  Its 'terms  were  too 
indefinite,  however,  to  be  a  very  effective  regulation  of  the  court's 
legislative  power. 

Another  power  granted  to  the  general  court  was  that  to 
"make  or  pass  any  grant  of  lands  lying  within  the  bounds  of" 
what  had  been  the  colonies  of  Massachusetts  Bay,  Plymouth,  and 
Maine.  This  naturally  belonged  to  the  court  as  representative 
of  the  corporate  personality  of  the  province,  which  had  succeeded 
to  the  ownership  of  the  property  of  the  Massachusetts  Bay  Com- 
pany, but  it  is  worth  noticing  in  contrast  with  the  governor's 
power  in  some  provinces  to  grant  public  lands,  an  opportunity 
for  fraud  not  always  neglected.  Accordingly  it  was  the  general 
court  that  granted  authority  for  surveys  in  the  public  lands,  held 
hearings  of  objectors  to  the  grants,  and  finally  passed  title  to 
individuals  or  to  companies  of  persons  thereby  incorporated 
as  towns. 


'3  Mass.  Hist.  Soc.  Coll.,  IX.  103. 


IN    PROVINCIAL    MASSACHUSETTS.  6l 

The  judicial  power  of  the  general  court  was  contained  in  the 
right  given  it  to  "erect  and  constitute  judicatories  and  courts  of 
record  or  other  courts  .  .  .  for  the  hearing,  trying  and  deter- 
mining of  all  manner  of  crimes  .  .  .  causes  and  things." 
With  the  imperfect  separation  of  powers  in  the  old  regime  the 
general  court  had  done  a  good  deal  of  judicial  business  itself. 
This  part  of  its  functions  was  done  away  with  by  the  new  charter, 
(though  not  by  express  provision),  the  legislature  confined  itself 
to  legislative  work,  and  judicial  work  was  done  by  a  complete 
system  of  courts  created  by  the  legislature,  with  a  superior  court 
for  the  final  hearing  of  appeals  from  the  local  courts,  saving  an 
appeal  in  some  cases  to  the  king  in  council.^  The  general  court 
heard  no  cases,  but  occasionally  on  petition  and  hearing  passed  a 
private  act  granting  retrial  or  such  other  special  relief  as  the  case 
required. 

A  unique  case  was  that  of  John  Borland  and  others  in  1706, 
involving  six  prominent  Boston  merchants  who  were  accused  of 
furnishing  supplies  to  the  enemy  in  Nova  Scotia.  Even  Governor 
Dudley  was  accused  by  rumor  of  complicity,  to  the  extent  at  least 
of  connivance  at  breaches  of  the  law,  and  intense  political  excite- 
ment prevailed.  By  committee  the  house  expressed  to  the  coun- 
cil its  request,  that  such  proceedings,  examinations,  trials  and 
judgments  may  be  had  and  used  upon  and  relating  to  the  said  per- 
sons as  is  agreeable  to  law  and  justice."^  Hutchinson  remarks: 
"It  was  expected  that  the  council  would  proceed  as  the  House  of 
Lords  do  upon  an  impeachment.  No  wonder  the  council  did  not 
immediately  proceed.  In  trying  a  capital  oflfence  it  behooved 
them  to  be  well  satisfied  of  their  jurisdiction."^  The  house,  either 
convinced  that  that  proceeding  was  irregular,  or  fearing  that  the 
charge  of  high  treason  could  not  be  supported,  proceeded  to  pass 
private  bills  of  pains  and  penalties,  declaring  in  each  case  the 
guilt  of  the  subject  of  the  bill  and  sentencing  him  to  the  payment 
of  a  considerable  fine.  The  whole  proceeding  was  nullified  shortly 
after  by  the  disallowance  of  these  private  bills  by  the  privy  coun- 
cil, and  its  order  for  the  repayment  of  the  fines. 

The  political  complexion  of  the  house  has  been  several  times 
hinted  at.    It  was  at  all  times  the  seat  of  opposition  to  the  preroga- 

^  Acts  and  Resolves,  1.  15. 
'  Court  Records,  VIII.  208. 
'  Hutchinson,  II.  142. 


62  CONSTITUTIONAL    CONFLICT 

tive,  with  a  greater  or  less  degree  of  unanimity  on  different  occa- 
sions. The  ports,  especially  Boston,  furnished  leaders  for  this 
party,  who  were  followed  in  opposition  by  the  members  from  the 
country  towns.  It  was  the  radical,  or  at  least  progressive,  rather 
than  the  conservative,  commercial  classes,  of  the  port  towns  who 
held  this  position  of  leadership.  Such  men  as  Dr.  Elisha  Cooke 
and  his  son,  were  able,  by  appeal  to  popular  prejudice  against 
outside  (i.  e.,  home  government)  interference,  to  win  a  following 
and  weld  it  into  a  fairly  compact  party,  which  they  used,  gen- 
erally for  the  patriotic  purpose  of  checking  executive  excesses, 
but  sometimes  apparently  in  a  factious  spirit,  to  serve  a  private 
pique  or  hamper  the  governor  in  the  legitimate  and  politically 
expedient  exercise  of  his  powers. 

The  port  towns  were  less  fond  of  rotation  in  ofifice  than  the 
country,  more  inclined  to  send  the  same  representatives  to  suc- 
cessive general  courts  and  thereby  win  experience  and  influence. 
In  the  thirty-five  elections  from  1693  to  1725,  Charlestown,  for 
example,  sent  individuals  as  her  representatives  for  an  average  of 
3.8  terms  each,  and  one  of  her  representatives  served  sixteen 
terms.  Shute  complained  of  a  maxim  in  Boston,  "A  negatived 
councillor"  (therefore  a  man  obnoxious  to  the  governor)  "makes 
a  good  representative,"  and  it  was  a  fact  that  three  of  the  Boston 
delegation  in  1723  had  at  various  times  been  excluded  from  the 
council  by  the  governor.  Shute  regarded  the  house  generally  as 
composed  for  the  greater  part  of  "men  of  small  fortunes  and 
mean  education."  He  complained  that  the  Boston  men  by  insinu- 
ation made  the  country  members  believe  the  house  was  barely 
supporting  its  privilege,  a  distressingly  absurd  misstatement  of 
the  case  as  he  saw  it. 

Viewed  in  the  light  of  what  was  to  come,  service  in  the  house, 
the  election  and  instruction  of  members  by  their  constituencies, 
the  correspondence  and  information  of  constituents  by  their  dep- 
uties, formed  an  important  influence  in  the  political  education 
of  the  province,  in  its  growing  apprehension  of  the  meaning  of 
real  democratic  self-government,  by  people,  not  clergy.  Out  of 
the  multifarious  disputes  involved  in  the  nature  of  things  be- 
tween governor  and  house,  the  province  learned  to  know  itself, 
to  find  where  its  interest  clashed  with  that  of  the  home  govern- 
ment as  represented  in  the  governor,  to  develop  and  systematize  its 


IN    PROVINCIAL    MASSACHUSETTS.  63, 

resources  for  opposition  and  its  power  to  compel  the  agent  of  the 
home  government,  to  estimate  the  value  of  the  connection  with 
the  mother  country,  a  value  which  might  one  day  seem  insufficient 
to  make  further  continuance  worth  while. 


CHAPTER  V.     THE  SALARY  QUESTION. 

Among  disputes  between  the  governor  and  the  house,  con- 
sidered as  a  general  feature  of  colonial  political  life,  none  is  more 
often  referred  to  than  the  salary  controversy.  In  Massachusetts, 
till  its  settlement  in  1735,  this  apparently  sordid  quarrel  occupied 
an  amount  of  attention  far  exceeding  that  which  would  be 
given  to  a  mere  administrative  detail.  Had  it  not  a  larger  signifi- 
cance? The  governor  demanded  a  fixed  permanent  salary,  and 
the  house  refused,  substituting  therefor  an  annual  allowance, 
all  agreeing  that  the  governor  should  have  a  support  from  the 
province,  differing  merely  upon  the  method  by  which  it  should  be 
granted.  In  the  minds  of  the  political  leaders  of  the  province  this 
was  held  to  involve  much  more  than  a  mere  administrative  detail, 
rather  a  fundamental  constitutional  principle  was  at  stake,  viz., 
that  the  disposal  of  public  money  was  the  function  of  the  repre- 
sentative body  of  the  province,  subject  to  no  dictation  from  home. 
Moreover,  with  the  development  of  the  provincial  constitution  by 
the  interaction  of  legislative  and  executive  departments,  the  pro- 
vincial leaders  gradually  came  to  see  that  with  the  salary  contro- 
versy was  involved  the  yet  more  fundamental  question  of  the  rela- 
tion of  the  departments.  It  came  to  be  realized  more  and  more 
clearly  that,  if  the  executive  were  supported  without  reference  to 
the  legislature,  the  former  would  become  a  perfectly  independ- 
ent department ;  if  the  support  of  the  executive  were  controlled 
by  the  legislature,  its  freedom  would  be  limited.  If  the  governor's 
contention  prevailed,  the  executive  and  legislature  would  remam 
co-ordinate;  the  triumph  of  the  house  meant  the  subordination 
of  the  executive,  and  something  in  the  nature  of  a  parliamentary 
sovereignty  as  a  result. 

In  his  capacity  of  royal  official  the  governor  was  very  un- 
welcome to  the  province,  because  he  represented  an  external  au- 
thority, and  his  presence  involved  a  substantial  limitation  on  local 
self-government.  This  circumstance  of  itself  made  a  cheerful 
support  by  the  legislature  unlikely,  in  the  light  of  their  undoubted 
preference  to  do  without  him  altogether.     The  poverty  of  the 

(64) 


IN    PROVINCIAL    MASSACHUSETTS.  65 

province  would  be  adduced  as  a  reason  for  small  pay  more  readily 
in  dealing  with  the  unwelcome  foreign  official  than  in  the  case  of 
the  native  military  and  civil  officers.  Further,  the  fact  that  the  gov- 
ernor was  a  royal  officer,  who  was  responsible  to  the  king  and  not 
to  the  province,  but  whom  it  ought  to  pay  for  the  service  he  was 
manifestly  performing  for  it,  was  held  to  mean  that  the  king  was 
prescribing  part  of  the  expenditure  of  the  province.  Fortified  by 
three-quarters  of  a  century's  experience  under  the  colonial  char- 
ter, and  relying  upon  the  analog)^  between  general  court  and  par- 
liament, the  province  was  fully  persuaded  that  it  was  the  right 
of  the  provincial  legislature  alone  to  determine  the  modes  of  ex- 
penditure of  public  money.  The  charter  required  that  the  issue  of 
money  from  the  treasury  be  according  to  the  rules  and  orders  of 
the  court.  This  gave  the  court  the  whip  hand.  The  home  govern- 
ment might  recommend,  might  command,  might  even  threaten 
the  general  court  with  the  dire  penalty  of  an  act  of  parliament 
in  case  of  a  refusal  of  a  fixed  salary ;  but  it  could  not  actually  grant 
the  money,  and  as  the  court  chose  to  run  the  risk  it  persistently 
refused  to  make  the  grant,  and  in  the  end  the  home  government 
had  to  yield. 

But  if  the  governor  was  an  official  existing  for  the  purposes 
of  the  home  government,  why  should  he  not  be  paid  by  the  home 
government,  and  thus  be  saved  a  deal  of  friction  and  waste  of 
energy  ?  This  suggestion  was  made  at  an  early  period  by  the  board 
of  trade,  but  was  never  approved.  In  the  first  place,  he  was  so 
evidently  serving  the  province  as  well  as  the  home  government, 
that  it  seemed  only  just  that  so  much  at  least  of  the  expense  of 
imperial  administration  be  borne  by  the  province  receiving  the 
benefit.  In  the  second  place,  it  was  always  to  be  hoped  that  by 
some  means,  (military  exigency,  political  adroitness,  or  what  not), 
the  governor  would  be  able  to  win  his  point  with  the  general 
court,  and  secure  the  obedience  of  the  province  to  the  command 
of  the  home  government.  But  the  payment  of  the  governor  from 
England  would  have  been  intolerable  to  Massachusetts.  The  sav- 
ing to  the  treasury  would  have  been  appreciated,  but  of  heavily 
overbalancing  consequence  was  the  constitutional  opportunity 
hinted  at  in  the  beginning.  The  proposition  was  never  formally 
made  in  our  period,  so  there  was  no  expression  of  the  opinion 
of  the  province;  but  the  indignation  in  1773-4  at  a  similar  provis- 
5 


66  CONSTITUTIONAL    CONFLICT 

ion  for  the  judges  of  the  superior  court^  leaves  no  doubt  what 
her  answer  would  have  been  at  the  beginning-  of  the  century.  A 
governor  not  only  appointed  in  England,  but  also  looking  thither 
for  his  support,  with  no  personal  loss  to  fear  from  the  ill-will  of 
the  province,  and  nothing  to  gain  from  its  good-will,  would  have 
been  (they  might  say)  far  more  under  the  temptation  to  play  the 
plunderer.  It  was  their  constant  argument  that  the  governor 
should  be  induced  by  his  own  "interest  as  well  as  duty"  to  consult 
the  welfare  of  the  province.  Here  is  a  presumption  on  the  part 
of  the  province  that  the  relation  with  the  governor  must  neces- 
sarily be  one  of  distrust  and  suspicion,  a  presumption  boding  no 
good  for  the  efficient  and  smooth  working  of  the  system.  But  even 
if  the  personal  integrity  of  the  imperial  official  were  presumed,  it 
was  evident  that  without  such  a  lever  as  a  variable  allowance  the 
legislature  could  not  hope  to  subject  the  executive  to  a  subor- 
dinate position ;  it  must  give  up  the  idea  of  restoring  by  gradual 
encroachment  the  seventeenth-century  parliamentary  supremacy 
of  the  general  court. 

The  significance  of  the  salary  question  was  appreciated  by 
both  parties.  At  the  very  outset,  by  the  advice  of  Elisha  Gooke, 
who  as  an  agent  in  England,  had  stood  out  most  persistently 
for  the  old  charter,  and  who  for  many  years  was  the  leader  of  the 
^'country  party"  in  Massachusetts,-  it  was  decided  that  no  salary 
be  established  for  the  governor,  and  instead  he  was  granted  every 
year  an  allowance  "for  his  service  and  expense,"  or  "to  enable 
him  to  manage  the  affairs  of  the  government."  The  house  real- 
ized more  or  less  clearly  the  doctrine  of  its  leaders,  that  the  annual 
support  could  be  used  as  a  club  over  the  governor's  head  to  secure 
some  measure  of  compliance  with  its  will.  Accordingly  it  became 
the  practice  to  pass  the  allowance  to  the  governor  on  the  last  or 
next  to  the  last  day  of  the  session.  Indeed,  in  1721  it  became  a 
matter  of  dispute  between  the  house  and  Governor  Shute  whether 
it  were  not  a  fixed  custom  that  the  house  should  be  informed  that 
the  governor  had  approved  the  acts,  resolves,  and  elections  of  the 
session  before  it  should  be  expected  to  enter  upon  allowances. 
In  1735,  when  the  demand  of  a  fixed  salary  was  given  up,  the 
privy   council  insisted  that  the  governor's   allowance  should  be 

'Hutchinson,   III.     386,  ff.,  422,  flf. 

'At  his  death,  in  1715,  his  son  Elisha  Cooke,  Jr.,  succeeded  to  this 
leadership. 


IN    PROVINCIAL    MASSACHUSETTS.  6/ 

passed  at  the  beginning  of  the  session,  to  which  practice  the 
house  thenceforward  conformed.^ 

The  home  government  also  reaHzed,  at  least  theoretically, 
the  importance  of  this  question.  It  viewed  the  matter  as  did 
Quary,  surveyor-general  of  the  customs,  Vv4io  observed  to  the 
board  of  trade  in  1703,  that  he  could  not  see  how  a  governor 
could  serve  the  interest  of  the  crown  when  dependent  "upon  the 
precarious  humors  of  the  people  for  a  subsistence."  "It  lays  the 
governor  under  the  temptation  of  making  sometimes  a  very  dis- 
advantageous bargain  for  the  crown  and  stooping  below  the 
dignity  of  his  character."-  The  board  of  trade  said,  March  27, 
1729,  that  the  appeal  of  the  house  to  the  governor's  pocket  meant 
that  they  would  pay  the  governor  in  proportion  as  they  judged 
he  deserved,  by  giving  his  assent  to  all  the  measures  which  they 
proposed.  Accordingly  the  king  instructed  his  governor,  begin- 
ning \vith  Dudley  in  1702,''  "to  propose  to  the  General  Assembly 
of  our  said  Province  and  accordingly  to  use  your  utmost  en- 
deavours with  them,  that  an  act  be  passed  for  settling  and  estab- 
lishing fixed  salaries  upon  yourself  and  others  our  captains-gen- 
eral that  may  succeed  you  in  the  government  .  .  .  suitable 
to  the  dignity"  of  the  office. 

But  when  mere  recommendation  was  fouad  to  be  ineffectual, 
the  home  government,  instead  of  passing  immediately  to  meas- 
ures which  would  bring  the  matter  to  an  issue,  allowed  it  to 
drift  unsettled.  Meanwhile  the  province  was  making  hay  in  the 
sunshine  of  official  indifference,  and  was  establishing  a  line  of 
precedents  that  became  only  more  difficult  to  break  as  time  went 
on.  Governor  Shute  went  home  in  1723  with  a  formidable  bundle 
of  charges  against  Massachusetts,  including  her  disobedience  in 
the  matter  of  his  salary.  Then  at  last  was  the  question  taken  up 
seriously.  In  Burnet  a  governor  was  found  who  would  insist 
on  doing  what  he  thought  to  be  his  duty,  in  which  he  included 
strict  obedience  to  the  salary  instruction.  His  whole  admin- 
istration was  one  brisk  fight  over  that  issue.  At  Burnet's  death 
Belcher  was  appointed,  with  strong  hopes  that  skilful  manage- 
ment would  succeed  where  high  character  had  failed.  But  after 
seven  years'  experience  of  a  house  annually  subject  to  election, 


^Palfrey,  IV.  539. 

^3  Mass.  Hist.  Soc.  Coll.,  VII.  230. 

'Ibid,   IX.    104. 


68  CONSTITUTIONAL    CONFLICT 

yet  unchanging  in  its  resolution  not  to  yield  to  strong  and  skil- 
fully applied  pressure  from  two  successive  governors,  the  privy 
council  gave  up.  In  1735  the  governor  was  given  permission  to 
accept  annual  allowances  from  the  house. 

A  description  of  the  progress  of  the  dispute  under  successive 
governors  will  illustrate  the  features  above  outlined.  Under  the 
old  charter  government  there  had  been  a  system  of  permanent 
salaries,  attached  to  the  office,  not  the  man.^  This  was  subject 
to  no  objection  in  the  days  of  unified,  complete  self-government. 
But  with  the  new  charter  came  an  entire  change  of  system.  Even 
the  native  officials  were  now  made  dependent  upon  annual  or 
semi-annual  grants  by  the  general  court. 

It  is  just  possible  that  if  Phips  had  been  instructed  as  were 
later  governors,  and  had  resolutely  insisted  on  the  passage  of 
a  permanent  salary,  the  circumstances  of  the  uncertainty  then 
prevailing  in  regard  to  constitutional  relations  in  the  meaning 
of  the  new  charter,  and  the  assistance  of  a  council  named  in 
England,  might  have  combined  to  bring  success.  He  did  not, 
however,  make  such  a  demand,  appears  to  have  been  unaware 
of  the  significance  of  the  question  and  of  his  responsibility  as 
governor,-  and  Vvas  apparently  content  with  the  "presents"  the 
court  gave  him.  These  were  indeed  munificent  in  comparison 
with  the  salary  of  the  colony  governors,^  but  the  establismhent 
of  precedents  was  of  the  greatest  importance  in  such  a  case,  and 
the  popular  body  under  Cooke's  guidance  thoroughly  appreciated 
the  significance  of  the  opportunity  and  its  own  responsibility, 
gaining  thus  an  advantage  by  no  means  lightly  to  be  esteemed. 
They  made  him  mere  grants,  single  and  unconnected,  though  of 
so  considerable  a  sum  as  £500*  and  he  approved  them ;  thus  was 
fixed  for  a  considerable  period  the  form  in  which  the  support 
of  the  governor  was  to  be  provided  by  the  house. 

Bellomont  received  no  precise  instruction  as  to  the  attitude 
he  should  take  on  this  matter,  and  his  short  term  was  occupied 

^  Osgood,    American    Colonies,    I.   485. 

"  True  he  wrote  to  the  board  of  trade  that  "no  salary  was  settled," 
and  he  "desired  it  might  be  considered."  He  requested  that  the  king 
"nominate  to  the  said  assembly  a  salary  sufficient  for  his  support  as  Gov- 
ernor."    Palfrey,  IV.  142. 

'£120  by  the  establishment  of  1653.     Mass.  Col.  Recs.,  III.  320. 

*  E.  g.,  "for  his  great  service  in  the  government  the  last  year,"  June  8, 
.1094.  Acts  and  Resolves,  I.  174. 


IN    PROVINCIAL    MASSACHUSETTS.  69 

with  Other  concerns.  But  his  tactful  cultivation  of  the  Puritan 
good-will  by  social  complaisance  and  a  popular  attitude  on  most 
political  questions  secured  him  remarkably  large  presents,  and 
showed  how  large  a  factor  personality  may  be  even  in  a  consti- 
tutional struggle.  This  is  illustrated  by  Hutchinson's  mention^ 
of  "a  speech  of  his  to  his  lady,  when  his  table  was  filled  with 
representatives  from  the  country  towns, —  '^Dame,  we  should  treat 
these  gentlemen  well ;  they  give  us  our  bread.'  "  This  Irish  peer 
was  estimated  at  twice  the  value  of  Phips,  the  native  ship-builder, 
and  £1,000,  was  granted  by  act  of  July  14,  1699,^  "to  the  sole 
and  proper  use  of"  Lord  Bellomiont,  and  again  just  a  year  later, 
July  5,  1700,^  another  thousand  pounds  was  granted,  the  court 
having  "resolved  to  make  a  present"  to  the  governor.  His  house- 
rent  also  was  paid  by  the  general  court,  and  a  special  present 
of  £500  was  made,  to  be  used  by  him  in  forwarding  the  court's 
address  to  the  king  in  regard  to  Harvard  College.  By  reason 
of  an  instruction  restraining  the  governor  from  accepting  money 
from  the  assembly  without  the  king's  leave  express  permission 
was  obtained  in  these  cases.* 

It  was  no  pleasure  to  Bellomont  to  have  "so  precarious  a 
foot  for  a  salary  for  this  government,"  and  he  complained  of  it 
in  his  letters  home.^  In  his  view  £1200  would  be  a  more  proper 
figure,  and  it  should  be  by  permanent,  not  annual,  legislative  act. 
The  board  of  trade  remarked,  April  11,  1700,  on  the  contumacy 
of  the  "only  Province  depending  immediately  on  the  King  which 
has  not  settled  an  allowance  on  the  Governor,"  though  much 
better  able  than  others.  Ashurst,  the  Massachusetts  agent  in 
London,  upon  inquiry  from  the  board  of  trade,  made  reply  that 
he  did  not  believe  the  general  court  would  consent  to  a  "salary 
upon  all  governors  for  the  future ;"  but  "doubted  not  but  that 
they  might  be  persuaded  to  settle  a  suitable  salary  upon  the  Earl 
of  Bellomont  during  his  government."''  More  was  to  be  heard 
later  of  this  compromise  proposition,  now  suggested  by  the  agent, 
and   later  to   be   supported   by   the   council   under   Burnet   and 


'  Hutchinson,   II.   107,   note. 

"Acts  and   Resolves,   I.  394. 

'Ibid,  437. 

Mbid,  766,  777. 

'August  28,  1699,  Palfrey,   IV.  177. 

"Palfrey,   IV.   177. 


70  CONSTITUTIONAL    CONFLICT 

Belcher,  but  it  was  to  be  at  first  ignored  by  the  board  of  trade 
and  later  rejected  by  the  house. 

The  first  years  of  Dudley's  administration  saw  the  issue 
sharply  defined.  In  his  first  speech  to  the  general  court, 
on  June  i6,  1702.^  he  announced  that  he  was  expressly  in- 
structed (as  above)  to  insist  on  fixed  salaries  for  the  executive 
officers,  and  upon  a  house  for  the  governor's  use,  warning 
them  that  it  was  remarked  in  England  that  there  was  no 
other  province  where  fixed  salaries  were  not  granted.  The 
house  ignored  this  point,  and  merely  resolved  "that  the  sum 
of  £600  be  at  this  time  presented  out  of  the  public  treasury 
to  His  Excellency  Joseph  Dudley ;"  a  little  later  an  act 
was  passed  accordingly.-  In  its  reply  to  the  governor's  speech, 
the  house  disposed  of  his  argument  in  summary  fashion: 
"As  to  settling  a  salary  for  the  Governor,  etc.,  it  is  altogether 
new  to  us,  nor  can  we  think  it  agreeable  to  our  present 
constitution,  but  we  shall  be  ready  to  do  according  to  our 
ability  what  may  be  proper  on  our  part  for  support  of  the  gov- 
ernment." Later  in  the  year  two  hundred  pounds  in  addition 
was  granted  him  by  resolve  "for  his  service  as  Governor  and  for 
house-rent  for  the  present  year,  beginning  from  the  time  of  His 
Excellency's  arrival.''^  This  was  the  outcome  of  a  thorough 
consideration  of  the  affair  between  governor  and  house,  Dudley 
reading  his  instruction  and  telling  them  they  were  "parties  priv- 
ileged and  as  singular  in  neglect  of  duty,''  the  house  declaring 
that  "it  is  not  convenient  (the  circumstances  of  the  Province 
considered)  to  state  salaries,  but  to  allow  as  the  Great  and  Gen- 
eral Court  shall  from  time  to  time  see  necessary."*  The  council 
at  first  agreed  that  this  was  not  "a  suitable  maintenance  for  His 
Excellency,"  but  finally  recommended  that  Dudley  accept  the  £200 
for  the  time,  hoping  better  things  from  a  later  session. 

On  April  10,  1703,  the  privy  council  passed  an  order^'  drafted 
by  the  board  of  trade,  to  be  communicated  to  the  Massachusetts 
council  and  house,  "to  require  them  that  in  consideration  of  the 
great  privileges  they  enjoy  they  do  settle  a  constant  allowance 


"  Massachusetts  Archives,  CVIII.  1. 
''Acts  and  Resolves,   I.  498. 
'Acts  and  Resolves,  VII.  358. 
'Court  Records,  VII.  327. 
'Acts  and  Resolves,  VII.  323-4. 


IN    PROVINCIAL    MASSACHUSETTS.  Jl 

suitable  to  the  character  and  dignity  of  that  government  without 
hmitation  of  time,"  intimating  that  "if  they  neglect  this  oppor- 
tunity of  complying  with  Your  Majesty's  just  expectations  Your 
Majesty  will  be  obliged  to  have  recovirse  to  such  remedies  as 
may  be  proper  and  effectual  to  a  due  provision  therein.''^ 

The  newly  elected  general  court  passed  a  resolve,  July  30, 
^y^Z'  —  ^  resolve  being  usual  from  now  on,  instead  of  an  act, 
which  would  be  subject  to  veto  at  home  —  granting  £300  to 
Dudley  "in  part  for  his  support  in  the  management  of  the  gov- 
ernment thereof  the  year  currant."  The  council  sent  a  message 
to  inquire  of  the  house  whether  this  was  "a  gratuity  or  for  serv- 
ice and  precisely  for  how  long,  and  to  move  a  suitable  allow- 
ance ;"  but  no  satisfaction  could  be  obtained  from  the  house,  and 
the  council  finally  advised  Dudley  to  accept  it.  In  September,^ 
and  again  in  November,  on  postponement  for  the  sake  of  getting 
a  "fuller  house,"  Dudley  became  very  urgent,  bringing  the  house 
on  the  5th  of  November  to  the  following  formal  statement  and 
defence  of  its  position :  "As  it  is  the  undoubted  privilege  of  the 
English  nation  to  raise  any  sum  or  sums  of  money  when  and 
to  dispose  of  them  how  they  see  cause,  and  so  hath  been  from 
Henry  III  and  confirmed  by  Edward  I  and  ever  since  continued 
as  the  unquestioned  right  of  the  subject,  so  we  hope  and  expect 
ever  to  enjoy  the  same  under  our  most  gracious  Queen  Anne 
and  her  successors,  and  therefore  do  account  it  inconsistent  with 
Her  Majesty's  interest  here,  and  that  it  may  prove  prejudicial 
to  Her  Majesty's  subjects  in  this  Province  to  state  perpetual 
salaries."  In  the  March  session  the  annual  allowance  was  com- 
pleted to  £500  by  an  additional  grant  of  £200  "for  and  towards 
his  support  in  the  government."*  Dudley  was  obliged  to  write 
home  to  Nottingham,  April  21,  of  his  disappointment  at  the 
"stubborn  resolved  temper"  of  the  house,  "that  they  will  agree 
to  nothing  wherein  they  may  show  their  obedience  to  Her  Maj- 
esty."^ 

This  temper,  moreover,  did  not  yield  to  Dudley's  repeated 
urgings,  nor  even  to  the  royal  urgency  displayed  in  the  letter  from 

'  Palfrey,   IV.   254-5. 

"Acts  and   Resolves,  VIII.  23. 

Mbid,  339. 

'Ibid,  52. 

'Palfrey,  IV.  291. 


72-  CONSTITUTIONAL    CONFLICT 

the  home  government  communicated  December  27,  1709,  calHng 
it  "unreasonable"  for  Massachusetts  to  expect  protection  from 
her  Majesty  "while  they  of  all  the  colonies  in  America  do  refuse 
to  settle  a  salary."  The  last  stand  was  made  in  September,  1705. 
In  spite  of  the  disinclination  of  the  house  to  consider  a  new 
letter  from  the  queen  regarding  the  repair  of  Pemaquid  Fort 
and  the  salary  question  without  a  fuller  attendance,  Dudley  in- 
sfsted  that  "the  House  should  sit  till  it  made  answer."  The 
result  was  an  address  to  the  queen,  in  which  the  court  justified 
its  course  of  disobedience  on  the  ground  of  the  right  of  English- 
men to  representation  and  consent  in  taxation  and  appropriation, 
"which  we  have  hitherto  happily  Enjoyed  under  your  Sacred 
Majesty,  And  we  humbly  hope  and  pray  will  be  continued  to  us 
and  our  posterity."  In  the  reply  to  the  governor's  speech, 
reason  for  non-compliance  had  also  been  found  in  the  fact  that  "the 
circum.stances  of  this  Province  as  to  our  ability  to  support  the 
government  are  at  times  so  different."^  At  this  point  the  gov- 
ernor lost  his  last  ally ;  for  the  council,  on  being  formally  asked 
its  advice  on  the  question  among  others,  "Whether  they  advised 
to  the  settling  a  fixed  salary  for  the  Governor  and  Lieutenant- 
Governor  for  the  time  being?"  gave  a  negative  answer. - 

The  question  was  thus  settled  for  the  period  of  Dudley's 
administration.  The  home  government  left  unrealized  its  vague 
threat  of  "further  measures,"  and  the  house  remained  master 
of  the  field.  Every  year  presents  were  regularly  made,  £300  in 
the  summer,  £200  in  the  winter  session,  and  Dudley  accepted 
these  gifts,  not  with  good  grace,  but  in  a  spirit  of  resignation 
to  disappointment.  The  variation  in  amount,  which  the  house 
feared  niight  be  necessitated  by  the  poverty  of  the  province,  and 
which  the  home  government  feared  might  adapt  itself  to  the 
governor's  degree  of  compliance  with  the  will  of  the  assembly, 
did  not  show  itself.  £500  was  the  sum  regularly  granted  through- 
out Dudley's  administration,  and  it  might  well  be  regarded  as 
the  minimum  of  decency.  Bellomont  his  predecessor  had 
been  ill  satisfied  with  £1,000,  and  Shute,  his  successor,  received 
ii200.  Dudley  himself  intimated  that  it  was  only  his  own  pri- 
vate estate  that  enabled  him  to  live  on  such  a  pittance.^ 


'Acts  and  Resolves,  VIII.  519. 
'Executive  Council   Records,  VIII.   153. 
'Acts   and    Resolves,    VIII.   555. 


IN    PROVINCIAL    MASSACHUSETTS.  73 

Shute  came  instructed  in  much  the  same  terms  as  was  Dud- 
ley, though  the  province  of  Massachusetts,  it  was  said,  "has  not 
hitherto  taken  any  manner  of  care  in  that  matter."^  A  house  was 
provided  for  him,  so  he  was  spared  the  pain  of  insisting  on  that 
detail.  In  his  first  speech,  November  7,  1716,  Shute  informed  the 
court  of  his  instructions,-  but  as  usual  received  only  a  grant  of 
£500  "for  his  support  in  managing  the  affairs  of  government."* 
The  following  April  the  house  declared  that,  "considering  our 
constitution,  it  will  not  be  for  His  Majesty's  service  nor  for  the 
good  and  advantage  of  his  subjects  here  to  have  fixed  and  stated 
salaries,  but  that  we  shall  very  readily  do  according  to  our  ability 
what  shall  be  proper  and  necessary  for  the  support  of  His  Majes- 
ty's government  over  us."*  The  next  day  "in  consideration"  that 
the  governor  had  said  "that  he  came  with  the  utmost  resolution  to 
study  the  true  interest  of  this  province,"  which  is  "very  grateful 
and  acceptable  to  this  house,"  an  extra  £300  was  granted  f  Shute 
accepted  it,  saying  it  "will  help  the  defraying  the  charge  of  my 
transportation."  In  the  May  session  the  new  house  granted  ^6500 
for  half  the  civil  war.**  Shute  reminded  them  that  owing  to  the 
inflated  condition  of  the  currency  this  was  not  more  than  £250 
sterling,  and  complained  that  "the  expense  I  am  at  even  with 
decency  to  support  my  character  is  greater  than  you  may  possibly 
imagine."  In  November  another  £500  was  granted,^  and  in  Feb- 
ruary, 1718,  still  £200  more,®  "in  Consideration  of  the  Dearness 
of  all. necessaries  of  House  Keeping." 

This  total  of  £1200  was  continued  till  1720,  the  year  of 
Shute's  most  acrimonious  disputes  with  the  house.  At  this  time 
the  semi-annual  allowance  of  £600  was  reduced  to  £500,  notwith- 
standing the  expression  of  the  unanimous  desire'  of  the  council 
that  the  allowance  be  not  less  than  during  the  last  three  years. 
Here  was  a  plain  case,  (in  fact,  the  only  one)  in  which  the  house 
administered  discipline  to  a  governor  for  opposition  to  its  policy  by 

^  House  Journal,  December  17,   1720. 

'Court  Records,  X.  92. 

"Resolve   1716,   c.    151. 

*  Court  Records,  X.  126. 

"Resolve  1716-7,  c.  161. 

"Resolve    1717-8,  c.  62. 

'  Resolve  1717-«,  c.  133. 

"Resolve  1717-8,  c.  161. 

"Court  Records,  XI.  104. 


74  CONSTITUTIONAL    CONFLICT 

actual  reduction  of  his  salary.  Shute  addressed  a  joint  session 
of  the  two  houses/  said  he  expected  £1200  as  formerly,  especially 
since  the  value  of  the  paper  money  was  sinking.  The  salary  in- 
struction 'was  read.  To  his  exasperation  the  house  replied  that 
it  thought  it  had  made  an  honorable  allowance,  and  since  ''the 
affair  of  settling  salaries  is  a  matter  of  great  weight  and  wholly 
new  to  this  House,"  it  desired  postponement  till  more  should  be 
present.  The  appropriation  was  accepted.  At  the  next  session, 
upon  Shute's  expostulating-  against  the  new  figure,  the  house 
replied  that  the  resolve  of  last  session  was  adopted  "after  a  free 
and  full  debate,  and  carried  by  a  very  great  majority  of  the  mem- 
bers of  the  House."  They  considered  the  present  allowance  "as 
much  as  the  honor  and  service  of  this  government  call  for,"  and 
at  that  figure  it  remained  during  Shute's  administration. 

In  the  July  session  of  1721  occurred  another  instance  of  the 
exercise  of  compulsion  on  the  governor  in  the  action  of  the  house 
on  his  allowance.  Toward  the  end  of  the  session  the  house  sent 
to  the  governor  to  know  whether  he  had  passed  upon  the  elections 
of  impost  officers,  which,  besides  the  joint  vote  of  the  two 
houses,  required  his  signature.  Shute  replied  rather  testily  that 
he  had  sent  down  ten  times  that  he  had  that  list  under  considera- 
tion, and  that  he  might  as  well  send  down  to  the  house  to  know 
what  they  had  done  about  his  salary,  and  that  the  house  knew 
what  they  had  to  do.  The  house  thereupon  laid  down  the  propo- 
sition that  they  were  accustomed  to  have  all  legislative  acts  of 
this  sort  completed  before  they  entered  upon  allowances.  The 
governor  made  an  equally  high  claim,  viz.,  that  he  was  not  accus- 
tomed to  sign  the  elections  and  resolves  till  after  the  allowances 
were  passed.  The  issue  of  fact  was  not  resolved,  but  the  import- 
ant thing  was  that  he  told  the  house  "they  might  depend  on  it 
that  he  will  sign  everything  before  him  before  the  court  rises. "^ 
Upon  this  the  allowances  were  passed. 

Discouraged  by  its  experience  with  Shute  and  his  assemblies, 
the  board  of  trade  appear  on  this  occasion  to  have  been  ready  to 
cut  the  Gordian  knot;  for  in  March,  1726-7,  it  made  a  represen- 
tation to  the  privy  council  "that  since  the  people  had,  in  opposi- 
tion to  the  royal  instruction,  reduced  the  governor  to  an  avowed 

•Court  Records,  XI.   108-111. 
=  Ibid,    113. 
"Ibid,  186-190. 


IN    PROVINCIAL    MASSACHUSETTS.  75 

dependence,  it  would  be  proper  that  he  should  be  paid  a  salary 
by  His  Majesty  at  home,  till  the  inhabitants  of  Massachusetts 
can  be  brought  to  a  better  temper."  Granting  that  it  was  just 
and  reasonable  that  the  assemblies  should  be  required  to  pay  fixed 
salaries,  "they  considered  the  obtention  of  so  desirable  an  object 
as  beyond  their  influence  or  power,  because  their  records  demon- 
strated how  often  the  same  measure  had  been  adopted  without 
success."  But  the  privy  council  determined  to  persist,  and  passed 
an  order  Alarch  25,  1727,  commanding  Shute  to  acquaint  the 
assembly  "that  if  they  hope  to  recommend  themselves  to  the  con- 
tinuance of  Your  Majesty's  royal  grace  and  favor,  it  must  be 
by  an  immediate  compliance  with  what  has  been  so  often  recom- 
mended to  them,"  viz.,  the  granting  of  a  salary  of  one  thousand 
pounds  sterling.  Otherwise  "it  may  be  worthy  the  consideration 
of  the  Legislature  ...  in  what  manner  the  honor  and  dig- 
nity of  your  Majesty's  government  ought  to  be  supported  in  these 
Provinces." 

The  death  of  George  I  vacated  Shute's  commission  just  as 
he  was  about  to  return  to  his  province,  but  his  successor,  William 
Burnet,  was  instructed  to  the  same  purport.  The  necessity  was 
emphasized  of  compliance  to  the  extent  of  a  fixed  salary  of  £1000 
sterling,  if  the  royal  favor  was  to  be  continued,  and  in  case  they 
"shall  not  pay  a  due  and  immediate  regard  .  .  .  we  shall  look 
upon  it  as  a  manifest  mark  of  their  undutiful  behaviour  to  us," 
requiring  the  consideration  of  parliament  how  the  dignity  of  the 
government  ought  to  be  supported. 

Burnet's  administration  was  one  long  controversy  between 
governor  and  house  on  the  salary  question,  in  which  all  possible 
arguments  were  developed  on  each  side,  the  governor  standing 
consistently  on  his  instruction,  the  house  with  equal  determin- 
ation on  its  conception  of  the  constitution.  Burnet  was  person- 
ally attractive,  had  a  reputation  for  dignity  and  efficiency  as 
governor  of  New  York,  and  the  house  let  him  know  in  the 
course  of  the  dispute  that  it  was  not  himself  personally  that 
they  were  opposing,  but  only  the  constitutional  principle  he  rep- 
resented. Moreover,  the  salary  question  was  now  hardly  at  all 
involved  with  other  constitutional  difficulties,  as  had  been  the  situ- 
ation under  Shute.  Hence  we  may  say  that  the  issue  was  fought 
out  on  its  ov/n  merits. 


76  CONSTITUTIONAL    CONFLICT 

Arriving  in  Boston  in  July,  1728,  Burnet  made  his  first  speech 
to  the  assembly,  July  24,^  the  occasion  of  a  formal  demand  for  the 
fulfilment  of  the  requirement  of  the  instruction,  which  he  at 
once  communicated  to  the  general  court.  He  adduced  three  argu- 
ments, the  wealth  of  the  province,  evidenced  by  its  leadership 
"among  the  colonies  in  point  of  trade  and  population,  and  by  the 
magnificent  reception  they  had  given  him ;  the  example  of  the 
British  parliament  in  granting  the  Civil  List  to  the  king  for  life ; 
and  the  constitutional  necessity  of  a  fixed  salary,  to  preserve  a  due 
balance  of  powers  in  the  provincial  government,  lest  if  one  de- 
partment of  the  legislature  become  unable  to  support  its  dignity 
the  whole  suffer.  He  declared  his  intention  as  the  king's  officer 
''to  act  by  his  instructions  and  to  have  no  inclinations,  no  tempta- 
tions, no  bias  that  may  divert  him  from  obeying  his  master's 
commands,"  saying  that  the  instruction  should  be  "an  inviolable 
rule  for"  his  conduct, —  the  novel  element  in  the  situation  being 
that  in  this  declaration  he  meant  what  he  said,  and  kept  his  word. 

After  two  days'  debate,  on  July  27,  the  house  voted  £1700  to 
Burnet  "to  enable  him  to  manage  the  public  affairs  of  the  gov- 
ernment and  to  defray  the  charge  he  has  been  at  in  coming 
hither."  As  being  "the  very  thing  against  which  the  said  instruc- 
tion is  levelled,"  viz.,  an  allowance,  not  a  salary,  Burnet  declared 
himself  "utterly  disabled  from  consenting,"  lest  he  incur  the  king's 
displeasure.  A  week  later,  August  6  and  8,  the  £1700  was  divided, 
£300  being  granted  and  accepted'-  for  the  charge  of  his  removal 
hither,  but  the  remaining  £1400,  offered  "to  enable  him  to  manage 
the  public  affairs",  being  refused.  The  house  prayed  him  to  accept 
it  in  that  form,  declaring  that :  "As  the  royal  charter  granted  us  by 
King  William  and  Queen  Mary  of  glorious  memory  has  vested  in 
the  General  Court,  the  power  to  impose  and  levy  proportionable 
and  reasonable  rates  and  taxes,  and  to  apply  and  dispose  of  the 
same  pursuant  to  the  rights  and  privileges  inherent  in  us  in  com- 
mon with  other  his  Majesty's  freeborn  subjects    ...    so  we  can 


'  For  this  and  following  speeches  of  Burnet,  and  the  replies  of 
council  and  house,  see  Council  Records  and  House  Journal,  sub  diebus; 
also  the  narrative  of  the  salary  controversy,  prepared  1iy  order  of  the 
house  April  17,  1729,  entitled  "A  Collection  of  the  Proceedings  of  the 
Great  and  General  Court  or  .Assembly  of  his  Majesty's  Province  of  the 
Mas.?achusetts   Bay." 

'Resolve    1728-9.   c.    161. 


IN    PROVINCIAL    MASSACHUSETTS.  "JJ 

with  all  sincerity  assure  you  of  our  readiness  to  improve  that 
power  in  providing  for  your  Excellency  such  a  support  as  shall 
be  ample  and  honorable ;  at  the  same  time  we  humbly  apprehend 
that  his  Majesty's  service  .  .  .  will  be  best  answered  with- 
out establishing  a  fixed  salary,  and  apprehending  that  we  cannot 
in  faithfulness  to  the  people  of  this  Province  in  any  other  way 
provide  for  your  Excellency  to  accept  the  grant  now  made  and 
herewith  presented  not  doubting  but  that  this  and  succeeding  as- 
semblies will  at  the  usual  times  cheerfully  afford  a  support  suit- 
able to  the  dignity  of  your  Excellency's  person  and  station." 
Two  days  later,  vNugust  9,  the  tvv'o  houses  agreed  in  a  message 
to  substantially  the  same  effect,  remarking  also  that  "we  esteem 
it  a  great  unhappiness  that  his  Majesty  should  think  our  method 
of  supporting  the  governors  of  this  Province  a  design  of  making 
them  dependent  on  the  people." 

Here  was  the  issue  clearly  joined.  A  fixed  salary  was  utterly 
refused.  The  plea  was  not  the  poverty  of  the  province ;  for  £1400 
v/as  an  allowance  of  unprecedented  generosity  in  amount.  Objec- 
tion was  based  solely  on  the  constitutional  privilege  of  the  house 
to  raise  and  dispose  of  public  money  without  dictation  even  from 
home.  The  rights  of  Englishmen,  as  they  understood  and  applied 
them  to  colonial  conditions,  should  justify  them  in  disobeying  the 
instruction.  The  expression  of  confidence  in  the  cheerful  gener- 
osity of  future  assemblies  deceived  no  one,  especially  as  the  court's 
language  did  not  actually  deny  a  design  of  making  governors  de- 
pendent. 

Burnet  immediately  replied,  August  9.  Ignoring  the  am- 
plitude of  the  allowance,  he  said  it  was  not  honorable,  as  it  "im- 
plies no  sort  of  confidence  in  the  government,"  "making  the  sup- 
port of  the  government  depend  visibly  on  an  entire  compliance 
v/ith  everything  demanded  by  the  other  branches  of  the  legisla- 
ture." He  declared  that  it  was  a  well-known,  undeniable  fact 
that  allowances  had  occasionally  "been  kept  back  till  all  other  bills 
of  moment  have  been  consented  to,"  the  allowance  depending  "on 
the  obtaining  such  consent,"  a  deprivation  of  the  "undoubted  right 
of  an  Englishman,  which  is  to  act  according  to  his  judgment." 
Therefore  he  should  never  accept  a  present  of  this  kind. 

The  houses  differed  in  their  manner  of  answering  this  mes- 
sage. The  council  was  still  of  opinion  that  the  purposes  of  the 
taxing  power  would  be  best  answered  without  a  fixed  salary,  and 


78  CONSTITUTIONAL    CONFLICT 

that  an  allowance  made  at  the  beginning  of  the  session  implied 
confidence  in  the  governor,  and  could  not  be  regarded  as  an 
attempt  to  reduce  him  to  subjection.  This  matter  of  balanced 
powers  was  taken  up  more  boldly  by  the  house.  To  follow  the 
instruction  would  be  to  give  up  their  money  power  and  make  the 
government  "too  absolute."  Referring  to  the  analogy  of  the  Civil 
List,  they  could  not  have  so  much  confidence  in  the  governor  as 
the  parliament  in  the  king;  for  the  king's  interest  is  completely 
identified  with  that  of  his  subjects,  while  neither  the  prosperity 
nor  the  adversity  of  the  province  has  any  effect  upon  the  gov- 
ernor's interest.  Moreover,  the  dependence  of  the  council  and 
house  on  the  governor  in  the  case  of  his  veto  power  upon  laws, 
in  that  of  his  power  of  warrant  from  the  treasury,  in  defence, 
and  in  other  matters,  constitutes  "so  vastly  more  than  a  counter- 
balance for  any  possible  dependence  of  the  governor  upon  them, 
that  it  cannot  be  thought  that  the  Commander  in  Chief  can  be 
thereby  prevented  acting  according  to  his  judgment  or  remain 
without  support,  nor  has  there  been  any  such  instance  here  that 
we  know  of."  Their  frankness  went  to  the  extent  of  saying  that 
as  to  "past  conduct  of  Assemblys  in  making  the  support  of  the 
government  conditional  .  .  .  it  is  not  easy  to  say  what  men 
may  have  had  or  had  not  in  their  own  views  and  thoughts,  but 
this  we  can  say,  that  to  have  done  so,  as  the  case  might  have 
been  circumstanced,  would  not  have  been  unreasonable  in  itself, 
nor  without  precedent  from  the  Parliaments  of  England,  when 
some  of  the  greatest  patriots  and  most  wise  and  learned  statesmen 
have  been  actors  in  them."  As  to  confidence  in  the  governor, 
they  say,  August  31,  "the  very  method  itself  is  founded  on 
nothing  else,  inasmuch  as  they  [the  grants]  always  look  forward 
and  are  given  to  enable  the  Governor  to  go  on  and  manage  the 
public  afifairs." 

After  a  dispute  carried  on  for  nearly  two  weeks  by  conference 
and  message  between  the  two  houses,  their  respective  positions 
were  formulated  on  August  22,  the  house  saying  "that  passing 
an  act  for  fixing  a  salary  on  the  Governor  or  Commander  in 
Chief  for  the  time  being  will  be  dangerous  to  the  inhabitants  of 
this  Province  and  contrary  to  the  plain  end  and  design  of  the 
powers  granted;"  the  council  declaring,  "that  the  passing  an  act 
for  fixing  a  salary  on  the  governor  or  Commander  in  Chief 
without  limitation  of  time  may  prove  of  ill  consequence  to  the 


IN    PROVINCIAL    MASSACHUSETTS.  79 

Province,"  implying  what  they  had  declared  August  20,  "that 
a  salary  may  be  granted  for  a  certain  time  to  his  Excellency 
William  Burnet  Esquire  without  danger  to  the  Province,"  a  con- 
cession in  which  the  house  refused  to  concur. 

Beyond  this  point  little  real  progress  was  made,  and  the  argu- 
ments tended  constantly  to  wander  from  the  main  point,  to  become 
mere  criticism  and  rebuttal  of  non-essentials.  On  August  28  the 
house  expressed  a  desire  for  prorogation.  The  governor  replied 
that  the  instruction  called  for  immediate  compliance  with  his 
Majesty's  will  concerning' a  salary,  which  would  become  impos- 
sible in  case  the  court  were  prorogued.  "Therefore  I  cannot 
agree  to  a  recess  till  you  have  finished  this  matter  for  which  the 
Court  is  now  met." 

This  attempt  at  compulsion  did  not  help  matters,  nor  did 
the  threat  veiled  under  Burnet's  refusal  of  their  renewed  re- 
quest, on  August  29,  for  prorogation.  In  announcing  his  refusal, 
he  spoke  of  the  withdrawal  of  his  Majesty's  favor,  and  said 
they  "would  be  very  concerned  to  find  the  Legislature  of  Great 
Britain  taking  into  consideration  the  support  of  this  government, 
and  perhaps  something  besides,  which  I  forbear  to  name,"  refer- 
ring probably  to  the  "dissolution"  of  the  charter  by  parliament. 
This  had  been  hinted  at  in  Agent  Dummer's  letter  of  March  lo, 
1722,  which  he  later  brought  to  their  attention,  a  letter  in 
which,  by  Secretary  Carteret's  friendly  advice,  he  strongly  coun- 
selled Massachusetts  to  use  more  modesty  and  prudence  in  con- 
ducting her  defence  lest  she  be  dealt  with  summarily  by  parlia- 
ment. 

The  house  replied  on  August  31  that  whether  or  not  the 
method  proposed  was  prejudicial  to  liberty  in  Great  Britain  and 
the  other  colonies,  the  "British  constitution  differing  from  ours 
in  many  respects"  and  the  motives  of  the  other  colonies  being 
unknown,  Massachusetts  could  not  be  influenced  thereby.  They 
insisted  on  their  liberties  under  the  charter,  as  a  balance  to  the 
powers  of  the  home  government.  Burnet's  message  of  Septem- 
ber 2  emphasized  skilfully  the  difference  of  opinion  which  was 
arising  between  the  two  houses,  but  argued  that  even  if  they 
were  agreed,  that  would  be  a  reason  the  more  why  the  third 
branch  (i.  e.,  the  governor)  should  not  be  dependent  upon  them. 
He  taunted  them  with  their  low  financial  credit,  proceeding 
"plainly  from  the  want  of  a  sufficient  check  in  the  other  branch 


So  CONSTITUTIONAL    CONFLICT 

of  tlie  Legislature  to  the  sudden  and  unadvised  measures  of 
former  assemblies."  As  to  allowances  looking  forward  and 
therefore  implying  confidence,  he  reminded  them  of  the  last 
previous  session,  when  the  "method  of  grants  was  brought  to 
look  directly  upon  the  present  business  in  order  to  compel  a 
compliance ;  or  if  you  like  that  better,  to  look  backward  by  way 
of  punishment  for  a  denial."^ 

The  next  step  was  an  appeal  to  the  country,  as  it  were.  On 
September  ii  the  house  adopted  an  "Advice"  drawn  by  a 
committee  appointed  four  days  previously,  "to  prevent  any  mis- 
representations that  may  be  made  to  the  several  towns."  Though 
there  was  no  dissolution  and  hence  no  new  election  at  this  time, 
the  close  connection  and  intimate  dependence  between  constit- 
uents and  deputy  made  the  house  desire  to  "know  the  mind  of 
their  principals,"  and  to  desire  still  more  that  "their  principals" 
should  know  the  mind  of  the  deputies,  should  be  correctly  in- 
formed of  the  doings  of  the  session,  and  should  have  a  proper 
apprehension  of  the  arguments  supported  by  the  several  parties 
to  the  controversy.  As  a  conclusion  of  this  "Advice"  it  was 
made  to  "plainly  appear  that  we  can  neither  come  into  an  act 
for  fixing  a  salary  on  the  governor  forever  nor  for  a  limited 
time."  Four  reasons  were  adduced,  (i)  "It  is  an  untrodden 
path,"  with  many  dangers  that  cannot  be  foreseen;  (2)  under 
Magna  Charta  Englishmen  may  raise  and  dispose  of  public 
money  without  compulsion;  (3)  it  will  lessen  the  dignity  of 
the  house  of  representatives  and  hence  destroy  the  balance  of  the 
constitution ;  (4)  the  house  must  not  betray  the  privileges  of  the 
province,  its  duty  being  by  charter  to  make  such  laws  only  as 
they  judge  for  its  "good  and  welfare." 

Burnet  did  not  let  this  "Advice"  go  unheeded,  but  in  his  an- 
swer introduced  no  new  argument.  On  September  21  the  house 
renewed  the  grant  previously  offered  but  not  accepted,  of  £1400 
"for  his  support  in  managing  the  affairs  of  the  government"  and 
added  ii6oo,  completing  the  year's  allowance  to  £3000  in  Massa- 
chusetts money,  equivalent  to  the  £1000  sterling  which  he  was  in- 
structed to  demand ;  but  still  it  was  in  the  obnoxious  form  that 
had  been  hitherto  practised,  and  Burnet  announced  himself  on 
September  23  "by  no  means  inclined"  to  assume  his  Majesty's 

^  The  house  had  refused  to  consider  allowances,  on  the  refusal  by  the 
jieutenant-governor  to  consent  to  the  act  for  credit  bills. 


IN    PROVINCIAL    MASSACHUSETTS.  8l 

displeasure  by  accepting  the  allowance  in  lieu  of  salary.  He 
wrote  to  the  board  of  trade,  September  30,  that  he  had  no  sub- 
sistence but  perquisites  from  the  shipping,  amounting  to  about 
£200  pounds  a  year,  but  that  he  had  refused  to  accept  the  three 
thousand  pounds,  since  it  was  offered  in  the  old  form,  "by  which 
they  may  at  any  time  bring  the  same  difficulties  on  me  that  they 
have  on  former  governors."  But,  notwithstanding  the  incon- 
venience he  was  suffering,  he  was  so  far  from  desiring  leave  to 
depart  from  the  instruction  and  accept  the  gift,  that  he  thought 
"his  Majesty's  authority  in  danger  of  being  lost  in  this  country 
if  it  be  given  up  in  this  point." 

Still  another  heavy  weapon  the  governor  tried  without  suc- 
cess. He  advised  the  house  on  October  i  that  their  issue  of 
credit  bills,  upon  which  depended  the  province  finance,  was  likely 
to  be  disallowed  by  the  home  government  because  of  the  con- 
tumacy of  the  province  in  the  salary  affair,  and  that  the  surest 
way  to  save  the  issue  of  credit  bills  would  be  to  appropriate  to 
the  governor's  salary  a  part  of  the  4%  interest  on  the  fund. 
But,  because  of  the  permanence  of  such  an  appropriation,  the 
house  refused,  declaring  on  October  24  that  such  a  procedure 
would  be  equal  to  fixing  a  salary,  "which  is  concluded  by  this 
House  to  tend  very  much  to  the  hurt  of  the  people  of  this  Prov- 
ince." 

Thereupon  the  governor  adjourned  the  court  for  a  week,  to 
meet  at  Salem.  His  reasons  for  this  move/  given  to  the  board 
of  trade,  were  that,  (i)  Boston  had  instructed  its  representatives 
to  vote  against  the  establishment  of  salaries;  (2)  the  people  of 
Boston  were  continually  trying  to  pervert  the  minds  of  the  coun- 
try members  upon  this  point,  Salem,  on  the  contrary,  being  well 
inclined;  (3)  Boston  did  not  deserve  the  profit  of  the  meeting 
of  the  court.  He  desired  that  the  home  government  should  dis- 
allow the  act  for  bills  of  credit,  and  he  hoped  that  parliament 
would  take  such  action  as  would  at  least  give  the  people  "just 
apprehensions  of  losing"  their  charter  "if  they  continue  refrac- 
tory." To  the  court  he  declared  on  October  31  that  what  brought 
him  to  the  measure  was  the  unanimous  declaration  of  the  town 
meeting  of  Boston  against  compliance  with  the  salary  instruction. 
This  was  taking  upon  themselves  "what  his   Majesty  calls  un- 

'  Palfrey,  IV.  513. 
6 


82  CONSTITUTIONAL    CONFLICT 

dutiful  behaviour  and  attempting  to  give  the  law  to  the  country," 
though  in  this  attempt  to  influence  other  towns  he  had  the  "pleas- 
ure to  observe  that  they  had  very  little  success."  After  two  weeks 
the  house  replied,  complaining  of  the  "hardships  and  difificulties" 
they  were  suffering  at  Salem,  resenting  the  dishonorable  impu- 
tation that  they  were  under  the  influence  of  any  single  town,  and 
declaring  that  "the  reasons  that  prevailed  with  them  to  determine 
as  they  had,  would  go  with  them,  guide  and  influence  them  every- 
where." With  the  argument  that  ensued  as  to  the  illegality  of 
the  court's  sitting  outside  of  Boston  we  are  not  here  concerned. 
But  Burnet  assured  the  house  that  their  desire  to  return  to  Bos- 
ton and  their  persistent  contumacy  only  confirmed  him  in  his 
opinion  that  the  Boston  prejudices  had  made  deep  impressions 
upon  them,  which  only  time  and  absence  would  remove. 

He  called  to  their  attention  moreover  the  inconsistency  of 
granting  no  salary  to  the  governor,  while  the  wages  of  council 
and  house  were  fixed  by  law.  With  bitter  irony  he  asked : 
"Would  it  not  have  been  better  to  have  waited  till  each  session 
was  over  to  see  how  much  every  member  of  either  house  might 
deserve  by  voting  with  the  majority  and  to  allow  them  wages 
in  that  case  only,  which  is  exactly  the  same  measure  which  the 
house  pursued  with  Governor  Shute  when  they  informed  him 
that  they  expected  the  bills  to  be  passed  before  they  would  go 
upon  allowances."^  Nothing  but  exasperation  could  or  did  result 
from  such  a  display  of  temper. 

The  next  step  was  the  preparation  by  the  house  of  a  me- 
morial to  the  king,  to  justify  their  course  and  counteract  the 
effect  of  the  partial  statement  of  the  case  he  had  presumably 
received  from  the  governor's  correspondence.  They  protested 
loyally  that  "nothing  less  than  the  prosperity  and  welfare  of  this 
your  most  dutiful  Province  could  have  prevailed  with  us  to  have 
done  anything  disagreeable  to  Your  Majesty's  instruction."  The 
familiar  arguments  were  used,  such  as  the  opportunity  enjoyed 
by  the  governor,  at  a  distance  from  England,  to  oppress  the 
province  unless  induced  to  the  contrary  by  his  own  interest  as 
well  as  duty  to  his  Majesty,  and  the  fact  that  the  Civil  List  at 
home  was  for  life  only.  The  governor  was  complained  of  for 
keeping  the  house  in  session  so  long  at  expense  to  the  province, 
and  for  the  removal  to  Salem.    The  unprecedentedly  large  grants 

^  Collection  of  Proceedings,  92-5. 


IN    PROVINCIAL    MASSACHUSETTS.  83 

to  Burnet,  notwithstanding  these  actions  of  his,  were  mentioned 
as  evidence  of  a  loyal  spirit,  "and  we  doubt  not  but  that  succeed- 
ing assemblies  according"  to  the  ability  of  the  Province  will  come 
into  as  ample  and  honorable  support  from  time  to  time ;  and 
should  they  not,  we  acknowledge  Your  Majesty  will  have  just 
reason  to  show  your  displeasure  with  them."^ 

The  absolute  refusal  of  a  salary,  and  the  direct  appeal  of 
the  house  to  the  king  that  he  withdraw  his  instruction  requiring 
it,  gave  the  governor  an  opportunity  to  put  an  end  to  the  intol- 
erable situation  —  an  assembly  in  continuous  session  for  five 
months  with  no  legislative  work  to  show  for  it.  On  the  understand- 
ing that  the  dispute  was  temporarily  transferred  to  the  other  side 
of  the  Atlantic,  and  that  for  the  present  occasion  the  house  had 
lost  its  opportunity  to  show  itself  dutiful,  the  court  was  pro- 
rogued on  December  2.2  to  meet  in  April  at  Salem.  Burnet 
expected  no  success  in  the  salary  conflict,  he  wrote  to  the  board 
of  trade,  "till  a  censure  of  Parliament  is  passed  upon  the  pro- 
ceedings of  the  Assembly  which  I  hope  Your  Lordships  will 
obtain  so  as  to  have  it  sent  early  in  the  spring  before  this  Assem- 
bly expires."^ 

The  home  government,  as  was  to  be  expected,  supported 
Burnet  against  the  appeal  of  the  house.  He  was  unable  to  obtain 
a  copy  of  the  memorial  of  the  house,  but  informed  himself  of 
the  substance  of  its  contents  and  sent  home  such  answer  as  he 
could.  The  chief  burden  of  this  answer  was  the  proposition  that 
"Governors  are  not  the  only  persons  guilty  of  ambition.  The 
men  that  afifect  to  be  popular  in  free  nations  have  better  oppor- 
tunity to  get  exorbitant  power  than  any  Governor,  and  that  it 
has  been  such  men  that  have  commonly  ruined  the  liberties  of 
their  country,"  —  in  other  words,  an  arraignment  of  the  house  as 
the  tool  of  its  leader,  Mr.  Elisha  Cooke,  who  is  made  out  to  be 
a  selfish  demagogue,  "a  profest  enemy  to  the  King's  lawful  au- 
thority in  this  Province." 

The  board  of  trade,  in  February  and  March  of  1729,  took 
into  consideration  the  memorial  and  the  answer  and  other  cor- 
respondence, and  gave  a  hearing  to  governor  and  house,  the  latter 
through  its  agent  Francis  Wilks  and  counsel,  the  governor 
through  his  brother  Thomas  Burnet  and  counsel ;  the  home  gov- 

^  Collection  of  Proceedings,  97. 
^  Palfrey,  IV.  518. 


84  CONSTITUTIONAL   CONFLICT 

ernment  was  represented  by  the  attorney-general  and  solicitor- 
general.  The  governor's  side  was  defended  with  no  more  than 
the  usual  arguments.  The  house  advocates,  on  the  other  hand, 
were  so  bold  as  even  to  complain  that  the  salary  instruction  was 
invalid,  being  obtained  "without  the  privity  of  the  people,"  who, 
if  given  opportunity,  could  have  presented  such  reasons  as  would 
prevent  his  Majesty  from  giving  such  an  instruction,  since  it  was 
regarded  as  "contrary  to  the  charter  .  .  .  which  gave  them 
a  free  liberty  of  passing  laws  for  raising  money  for  the  defence 
and  support  of  the  government," —  a  claim  of  popular  control 
over  the  crown's  instruction  of  its  agent  that  must  have  aston- 
ished the  home  authorities  by  its  audacity.  On  March  27  the 
board  reported  its  conclusion  to  the  privy  council.  As  to  the 
desire  of  the  house  to  make  the  governor  "serve  his  interest" 
by  governing  the  province  well,  this  suggests  on  the  contrary 
the  "strongest  reason"  with  the  board  for  requiring  a  permanent 
salary,  viz.,  in  order  that  the  governor  may  be  free  to  do  all  that 
the  prerogative  interest  demands,  whether  it  please  the  province 
or  not,  without  fear  of  losing  his  support.  They  propose  that 
he  be  instructed  to  insist  on  a  salary  of  £1000  sterling  "by  a  law 
settled  upon  him  during  the  whole  time  of  his  government."  If 
the  house  do  not  comply,  they  know  no  way  but  that  your  Maj- 
esty "lay  an  account  of  their  conduct  before  your  Parliament." 
Burnet  has  acted  "with  honor  and  integrity"  in  refusing  the  allow- 
ances offered  to  seduce  him  (like  former  governors)  from  his 
instruction. 

The  privy  council  received  a  report  also  from  its  plantations 
committee  on  April  22,  "that  the  point  contended  for  was  to 
bring  the  Governor  appointed  by  his  Majesty  over  them  to  a  de- 
pendence on  their  good  will  for  his  subsistence,  which  would 
manifestly  tend  to  the  lessening  of  his  authority  and  consequently 
of  that  dependence  which  this  colony  ought  to  have  upon  the 
crown  of  Great  Britain."  It  was  "absolutely  necessary  .  .  . 
that  a  salary  of  £1000  sterling  per  annum  should  be  settled  upon 
the  Governor  during  the  whole  time  of  his  government."  The 
king  should  be  "humbly  advised  to  order  this  whole  matter  to  be 
laid  before  the  Parliament  of  Great  Britain."  The  committee  also 
observed  that  Burnet  had  "acted  with  the  utmost  duty  to  Your 
Majesty  and  just  regard  to  the  trust  reposed  in  him."  The  re- 
port was  approved  by  the  privy  council  on  May  22,  and  it  was 


IN    PROVINCIAL    MASSACHUSETTS.  85 

ordered  that  one  of  the  secretaries  of  state  "receive  the  pleasure 
of  the  crown  thereupon."^ 

It  is  noteworthy  here  that  while  this  was,  as  Palfrey  calls 
it,  "an  absolute  approval  of  the  Governor's  conduct,"  it  was  not 
an  endorsement  of  his  whole  claim,  but  only  of  the  portion  of  it 
on  which  he  had  the  support  of  the  province  council,  viz.,  that  a 
salary  be  laid  by  law  "during  the  whole  time  of  his  government," 
after  the  manner  of  the  Civil  List  granted  to  the  present  king  for 
life.  It  did  not  go  as  far  as  the  instruction  and  insist  on  a  salary 
for  the  "Governor  for  the  time  being."  This  may  well  be  the  mean- 
in*^;  of  Chalmers's  statement^  that  Newcastle  sent  Burnet  private 
instructions  "to  recede  from  his  former  demands  of  a  standing 
salary."  For  on  June  26  Newcastle  wrote  Burnet  that  the  lords 
of  trade  and  the  lords  of  the  committee  of  the  privy  council  after 
full  hearing  of  the  case  were  both  "of  opinion  that  the  salary  of 
£1000  sterling  per  annum  ought  to  be  settled  on  you  during  the 
whole  time  of  your  government."  This  recommendation  of  a 
middle  course,  however,  did  not  result  in  any  abatement  of  the 
terms  of  the  formal  instruction.  Newcastle's  letter  transmitted 
the  order  in  council  and  said,  there  is  "too  much  reason  to  think 
that  the  main  drift  of  the  Assembly  ...  is  to  throw  off 
their  dependence  on  the  Crown,"  that  this  has  produced  the  final 
determination  of  laying  the  whole  matter  before  parliament,  which 
had  certainly  been  done  this  last  session  if  it  had  not  been  pro- 
rogued before  the  report  was  made  to  his  Majesty.  "It  will  be 
delayed  no  longer  than  the  first  meeting  in  the  winter." 

At  the  opening  of  the  April  session  of  the  Massachusetts 
assembly  Burnet  gave  them  another  opportunity  of  showing  that 
their  "professions  of  duty  and  loyalty  to  His  Majesty  are  more 
than  words."  But  the  house  voted  not  to  "come  into  further 
consideration  of  settling  a  salary  on  the  Governor  at  the  present 
session,"  and  the  time  was  largely  occupied  with  a  dispute  between 
the  two  houses  as  to  the  support  of  the  agents  in  England,  the 
council  refusing  to  concur  in  the  appropriation  because  they  had 
not  been  allowed  to  participate  in  the  preparation  of  the  memorial, 
and  had  not  even  seen  the  instructions  regarding  its  presentation. 
Such  agents,  they  held,  must  be  regarded  as  responsible  to  the 
house  alone,  and  ought  not  to  be  supported  by  the  province.    The 

'  Palfrey,   IV.   519,   note. 
-  Chalmers,  Revolt,  II.  129. 


86  CONSTITUTIONAL   CONFLICT 

house  was  also  charged  with  misrepresenting  the  council's  atti- 
tude. The  memorial  represented  the  council  as  "concurring"  with 
the  house,  whereas  the  council  declared  on  April  i8  its  readiness, 
signified  some  time  previously,  to  vote  a  salary,  "for  a  limited 
time,  having  good  reason  to  conclude  that  His  Excellency  judged 
himself  at  liberty  by  his  instruction  to  accept  thereof,  and  that 
thereby  all  complaints  home  of  our  non-compliance  with  his 
Majesty's  23d  Instruction  would  be  prevented."^  It  would  be  in- 
teresting to  know  what  "good  reason"  the  council  had  for  this 
opinion  of  the  governor's  willingness  to  deviate  from  the  terms 
of  the  instruction.  In  all  Burnet's  public  utterances  he  insisted  on 
strict  compliance,  and  we  have  no  further  information. 

On  the  failure  of  passage  of  the  resolve  of  the  house  to  pay 
its  agents,  the  house  could  only  vote  its  thanks  to  certain  mer- 
chants for  their  advances  on  that  account,  and  promise  to  "use 
their  utmost  endeavors"  to  reimburse  them  later.  It  instructed 
the  Boston  members  to  compile  and  publish  all  the  proceedings 
had  thus  far  upon  the  salary  question,  and  was  then  dissolved. 
The  governor  refused  to  sign  warrants  for  payment  of  the  per 
diem  wages  of  the  representatives,  declaring  that  "it  may  justly 
appear  doubtful,"  since  "near  a  third  part  of  the  time  of  the  sitting 
of  the  General  Assembly  has  been  rendered  useless  by  your  refus- 
ing to  do  the  business  of  the  Province,"  whether  the  towns  ought 
to  bear  an  expense,  the  sole  end  of  which  was  defeated."-  Prob- 
ably, however,  he  did  not  help  his  cause  by  this  proceeding ;  for 
the  questionableness  of  its  justice  gave  the  individual  represen- 
tatives a  very  obvious  and  concrete  grievance  for  exploitation  in 
the  election. 

The  new  house,  elected  as  usual  in  Alay,  1729,  spent  short 
sessions  in  May  and  July  upon  other  matters.  In  the  August 
session  Burnet  brought  up  once  more  the  salary  question,  being 
now  prepared  to  acquaint  the  house  with  the  action  of  the  privy 
council.  But  the  house,  willing  to  take  the  risk  of  parliamentary 
action,  merely  affirmed  its  approval  of  the  position  of  the  preced- 
ing house  regarding  salaries,  probably  having  private  advice  from 
England  of  the  reluctance  of  the  ministers  to  introduce  such  a 
question  into  parliament.  Having  been  adjourned  by  the  gov- 
ernor, this  time  to  Cambridge,  it  made  him  a  grant  of  £6000  "for 

'Collection  of  Proceedings,  111. 
'  Court  Records,  XIV.  239. 


IN    PROVINCIAL    MASSACHUSETTS.  87 

his  support  last  year,  and  further  to  enable  him  to  manage  the 
affairs  of  government.''  That  is  to  say,  they  were  ready  to  give 
him  £3000  a  year  (practically  the  sum  demanded)  notwithstanding 
his  harsh  treatment  of  them  in  adjournment  to  unusual  places, 
but  they  would  do  it  only  in  their  own  way,  by  annual  grant.  He 
refused  it  angrily.  "If  you  will  not  comply  with  his  Majesty's 
instruction  you  might  at  least  forbear  your  endeavour  to  seduce 
one  of  his  servants  from  his  declared  duty."  That  day  he  fell 
ill  from  exposure,  and  a  week  later  he  died.  The  court  showed 
its  regard  for  his  person  by  giving  him  a  sumptuous  funeral. 

Lieutenant-governor  Dummer  immediately  assumed  the  gov- 
ernment, and  announced  his  determination  to  insist  on  the  terms 
of  the  instruction.  Writing  to  Newcastle  on  November  4,  he 
described  the  circumstances  of  Burnet's  death.  On  the  question 
of  "settling  a  salary-  during  the  governor's  time,"  he  said,  "there 
v.T.s  but  18  yeas  against  54  noes,  so  that  I  cannot  see  the  least 
prospect  of  having  the  matter  done  here  ;"  "shall  press  the  Assem- 
bly at  our  next  meeting  on  this  point."  At  the  next  session, 
though  the  house  made  a  grant  of  £750  to  Dummer,  he  adhered 
to  his  instruction,  and  refused  to  accept  it.  He  took  the  same  stand 
in  the  case  of  a  grant  of  £900  at  the  summer  session  of  1730, 
but  just  then  came  the  news  of  his  supersession.  Tailer,  the  new 
lieutenant-governor,  had  no  such  conscience  about  his  instruction, 
and  consented  to  resolves^  for  the  benefit  both  of  himself  and  of 
Dummer,  who  was  thereby  saved  from  loss,  notwithstanding  his 
fidelity. 

Tlie  death  of  Burnet  gave  a  respite  to  the  ministry  in  the 
dilemm.a  arising  from  its  disinclination  to  refer  to  parliament  and 
its  desire  to  use  the  threat  of  such  reference  as  a  means  of  coerc- 
ing the  province.  The  home  government  could  give  the  province 
one  more  opportunity  to  obey.  If  the  new  governor  were  skilful, 
i-  was  just  possible  that  he  might  win  the  point,  and  at  any  rate 
here  was  a  delay  during  which  something  might  turn  up.  There- 
fore afte'r  getting  the  opinion  of  the  agents  of  Massachusetts  on 
November  6  that  they  knew  of  no  intention  on  the  part  of  the  Mas- 
sachusetts assembyq  to  vary  their  last  resolution,  the  privy  council, 
on  the  suggestion  of  the  board  of  trade,  made  the  follovring  propo- 
sition on  November  12  to  the  assembly.    As  a  natural  consequence 


'Resolves  1730,  cc.   13,  9. 


88  CONSTITUTIONAL    CONFLICT 

of  the  refusal  of  salary  by  Massachusetts,  and  because  they  seem 
"in  some  of  their  answers  upon  that  subject  to  have  forgotten  that 
decency  and  respect  which  is  always  due  to  their  governors,"  his 
Majesty  was  under  the  necessity  of  laying  their  undutiful  behavior 
before  parliament,  especially  since  it  appeared  that  the  assembly 
"for  some  years  last  past  have  attempted  by  unwarrantable  prac- 
tices to  weaken  if  not  entirely  to  cast  off  the  obedience  they  owe 
to  the  crown."  But  as  personal  quarrels  may  have  given  a  tem- 
porary bias,  their  lordships  "are  for  this  time  willing  to  interpose 
with  His  Majesty  ...  to  suspend  his  just  resentment  till 
their  Assembly  shall  have  had  one  more  opportunity  of  debating 
the  weight  of  his  royal  instruction,"  and  the  consequence  of  refus- 
ing "so  reasonable  a  recommendation."  Their  lordships  propose 
to  the  assembly  to  pass  a  law  "that  the  salary  of  their  governor 
for  the  time  being  shall  be  £1000  per  annum  sterling  clear  of  all 
deductions  and  that  the  said  salary  be  constantly  paid  out  of  such 
monies  as  shall  from  time  to  time  be  raised  for  the  support  of  the 
government  and  defence  of  the  inhabitants  of  the  said  Province." 
Accordingly  it  was  ordered  by  the  privy  council  on  December  2 
that  "no  proceedings  be  had  on  the  order  in  council  made  on  May 
22d  last  (i.  e.,  for  reference  to  parliament)  until  the  effect  of 
said  proposition  be  known." 

There  had  been  a  slight  hitch  in  the  arrangement  of  this  prop- 
osition, and  what  looks  suspiciously  like  a  surrender  of  their  posi- 
tion by  Wilks  and  Belcher,  the  agents  of  the  house.  On  Novem- 
ber 6  the  board  had  informally  proposed  to  them  "since  the  assem- 
bly of  Massachusetts  have  already  by  several  acts  provided  stated 
salaries  for  their  Council  and  Assembly  men,  that  they  should 
make  like  provision  of  £1000  sterling  per  annum  for  their  gov- 
ernor for  the  time  being."  The  agents  had  at  first  answered  that 
without  doubt  the  assembly  would  comply,  regarding  this  as 
^'great  condescension  and  goodness  in  the  government  here."  But 
it  turned  out  that  by  this  extraordinary  statement  they  meant  "that 
as  the  acts  providing  salaries  for  their  Council  and  Assembly  are 
near  expiring,  that  when  the  same  should  expire  the  Assembly 
would  for  the  future  provide  for  the  Council,  Assembly  and  Gov- 
ernor in  the  same  manner,  that  is,  by  an  annual  resolve  every 
session  only,  and  not  by  act  of  assembly,  nor  for  any  fixed  term 
whatsoever."^     Thereupon   the   board   were   about   to   prepare   a 

'  Palfrey,   IV.  534,  note. 


IN    PROVINCIAL    MASSACHUSETTS.  89 

report  on  the  "obstinate  behavior"  of  the  province,  the  signifi- 
cance of  this  dispute  for  the  trade  of  Great  Britain  and  the 
authority  of  the  crown,  when  on  November  ii  the  agents  "ac- 
quainted Their  Lordships  that  having  reflected  upon  what  passed 
when  they  attended  the  Board  the  6th  inst.,  having  reconsidered 
their  letters,  and  apprehending  that  the  death  of  Mr.  Burnet  might 
have  abated  the  animosity  of  the  dispute  between  him  and  the 
Assembly,  and  have  made  some  alteration  in  the  temper  of  that 
Province,  they  were  ready  to  transmit  any  proposition  to  the 
Assembly  that  this  Board  should  make  to  them,  and  would,  as 
far  as  was  compatible  with  their  stations,  enforce  the  success 
thereof,  and  were  informed  by  the  Board  that  they  would  apply 
to  his  Majesty  for  leave  to  make  them  a  proposition  in  writing,^ 
and  would  humbly  entreat  his  Majesty  to  suspend  his  just  resent- 
ment against  the  Province  until  such  time  as  the  effect  of  the 
said  proposition  should  be  known."  This  readiness  to  receive  and 
enforce  any  proposition  the  board  might  make  is  a  notable  and  sur- 
prising change  of  heart  in  the  agents.  Possibly  they  had  by  this 
time  come  to  a  new  and  more  vivid  opinion  of  the  danger  to  the 
province  from  the  then  possible  parliamentary  action,  and  hoped 
that  it  might  be  warded  off  or  at  least  delayed  by  the  change  in 
governor  ship.  Is  it  not  also  possible  that  just  at  this  point  Belcher 
openly  abandoned  the  cause  he  had  been  sent  to  England  to  de- 
fend? This  "readiness"  manifested  itself  on  November  ii,  just 
seventeen  days  before  his  appointment  as  governor.  From  house 
agent  to  governor  was  an  amazing  transition,  but  for  a  man  of 
Belcher's  ambition  and  easy  political  morals  it  was  quite  feasible, 
and  the  price  paid  for  his  official  advancement,  it  may  be  sup- 
posed, was  this  treachery  to  his  trust  from  the  house,  this  readi- 
ness to  urge  the  demands  of  the  home  government. 

As  a  result  of  proceedings  thus  far,  the  house  had  now  in 
1730  a  situation  to  deal  with  that  was  no  better  than  that  of  two 
years  before.  Belcher's  instruction  was  even  more  peremptory 
than  Burnet's.  Whereas  the  assembly  has  neglected  the  king's 
condescending  permission  that  Burnet  might  accept  £1000  if  set- 
tled on  him  for  the  time  of  his  continuance  in  office,  "whereby 
they  have  justly  incurred  our  displeasure,"  and  whereas  their 
conduct  would  have  been  laid  before  parliament  but  that  the  board 

'  This  is  the  proposition  described  in  the  preceding  paragraph. 


90  CONSTITUTIONAL    CONFLICT 

of  trade  requested  that  they  might  have  another  opportunity, 
therefore  if  a  salary  (in  the  original  understanding  of  that  term, 
viz.,  for  the  time  being)  should  not  be  laid  forthwith,  "you  are 
required  immediately  to  come  over  to  this  kingdom  of  Great 
Britain  in  order  to  give  us  an  exact  account  of  all  that  shall  have 
passed  upon  this  subject,  that  we  may  lay  the  same  before  our 
Parliament,  unless  you  think  it  for  our  service  to  send  some  one 
else  fully  instructed." 

Belcher  met  the  general  court  September  9,  1730,  and  in 
his  first  speech  communicated  this  instruction,  exhorting  them 
after  their  long  heroic  struggle  not  to  continue  their  emulation  of 
Cato  Uticensis  to  the  point  of  self-destruction.  Grants  were  made 
to  him  and  accepted,  of  £1000,  £500,  and  800  acres  of  land,  in  con- 
sideration of  his  services  as  house  agent  ;^  but  upon  the  question 
"Whether  it  be  the  mind  of  the  House  to  fix  a  salary  on  the  Gov- 
ernor of  this  Province  for  the  time  being?"  after  a  long  debate 
the  house  voted  on  September  16  in  the  negative.  The  following 
day  they  passed  a  resolve  granting  £3000  to  Belcher  in  the  old 
form,  and  sent  it  up  with  a  message  declaring  that  the  house 
"firmly  believe  that  as  this  so  all  succeeding  assemblies  will  with 
the  utmost  cheerfulness  afford  an  ample  and  honorable  support 
for  his  Majesty's  government."  They  absolutely  refused  the  com- 
promise proposal  of  the  council  on  October  i  of  a  fixed  salary 
during  Belcher's  continuance  in  office.  On  October  7  he  wrote 
home  to  the  board  of  trade  that  though  it  was  the  busy  season 
when  their  private  affairs  call  them  home  "I  shall  keep  them  sit- 
ting till  they  give  a  conclusive  answer  to  this  grand  article."  "I 
have  a  prospect  of  their  making  a  dutiful  and  reasonable  return 
to  the  proposal."  But  lacking  Burnet's  power  of  will  he  gave 
way  soon  (October  28)  to  their  clamor  for  adjournment,  having 
won  no  more  than  the  bill  of  that  same  day  granting  him  £2400, 
which,  though  no  compliance  with  the  terms  of  the  instruction, 
he  regarded  as  "going  a  great  way  further  than  they  have  ever 
yet  done,  and  I  think  may  be  taken  as  a  settlement  during  the 
present  Governor's  administration."^  The  lords  of  trade  re- 
marked thereupon  that  they  "are  at  a  loss  to  imagine  how  Mr. 
Belcher     .     .     .     could  think  that  this  might  be  taken  as  a  settle- 


'  Resolves   1730,   cc.  44,   93,    129. 

''Belcher  to  Newcastle,  December  10,  1730. 


IN    PROVINCIAL    MASSACHUSETTS.  QI 

ment  during  his  government."^  At  the  new  session  he  succeeded 
no  better,  the  house  declaring  January  i  "after  the  most  serious 
consideration"  of  the  salary  instruction  that  "we  apprehend  the 
House  ought  not  to  accede  thereto."  Belcher  dissolved  the  house 
the  next  day  and  summoned  a  new  one. 

Addressing  himself  to  the  new  house  on  February  lo, 
Belcher  said  that  he  hoped  after  the  "broils  and  confusions  in 
which  you  have  been  so  long  and  so  unhappily  involved  .  .  . 
you  are  now  come  together  to  be  the  happy  deliverers  of  your 
country  from  the  troubles  and  difficulties  that  still  hang  over  it. 
.  Upon  your  present  determination  depends  much  of  the 
future  peace  and  welfare  of  this  people.  .  .  .  Should  you 
oblige  me  to  put  in  practice  that  part  of  my  duty  to  the  King 
in  making  another  voyage  to  Great  Britain  there  to  represent 
to  his  Majesty  and  his  ministers  your  final  refusal  to  support 
his  Governor  in  the  manner  he  has  required,  it  must  produce 
such  consequences  to  this  people  as  I  am  sure  they  will  wish 
they  had  prevented."  But  the  house  knew  its  man.  Belcher  had 
until  1729  been  a  man  of  high  prerogative  principles.-  He  had 
changed  to  become  the  agent  of  the  house.  He  had  then  changed 
to  become  the  enemy  of  the  house.  They  now  knew  him  to  have 
only  one  political  principle,  viz.,  to  serve  himself.  Upon  this 
basis  they  were  able  to  deal  with  him  and  win  their  point. 

On  February  12,  after  consideration  of  the  governor's 
speech,  on  the  question,  "Whether  the  House  would  fix  a  salary 
upon  the  Governor  for  the  time  being,  according  to  his  Majesty's 
27th  instruction  ?"  it  "passed  in  the  negative  by  a  very  great 
majority."     The  same  answer  was  given  on  February  17  to  the 

^  Acts  and  Resolves,  II.  633.  The  bill  had  merely  declared  "that  at 
the  beginning  of  the  session  of  the  General  Court  in  May  next  there  shall 
again  an  Act  pass  for  an  ample  and  honorable  support  and  suitable  to 
the  dignity  of  his  station  to  his  Excellency  Jonathan  Belcher  Esq.  in  the 
management  of  the  public  affairs,  and  so  annually  at  the  beginning  of  every 
May  session  during  his  continuance  in  the  administration  of  the  afifairs  of 
this  government  and  his  residence  here."  This  bill  is  to  be  found  in  Bel- 
cher's letter  to  the  home  governm.ent,  December  10,  1730,  in  Sainsbury 
Papers,  misc.  files,  Mass.  Archives.  It  evidently  does  no  more  than 
promise  an  "ample  and  honorable"  support  at  the  beginning  of  each  annual 
session,  but  gives  no  guaranty  against  variation  in  that  amplitude  and  hon- 
orableness  of  support. 

''Hutchinson,  II.  331. 


92  CONSTITUTIONAL    CONFLICT 

question,  "Whether  the  House  would  settle  a  salar}^  on  His 
Excellency  the  Governor  during  his  administration?"  and  on 
March  9,  "Whether  they  would  make  any  grant  for  the  support 
of  His  Excellency  for  any  limited  time?"^  That  is  to  say,  the 
house  refused  even  the  compromises  proposed,  which  would  have 
contented  the  board  of  trade  before  Belcher's  treachery.  But  on 
March  4  the  house  passed  a  bill  in  what  was  equivalent  to  the 
old  form,  "for  the  support  of  His  Majesty's  Governor  in  the 
discharge  of  the  honorable  and  weighty  trust  reposed  in  him ;" 
this  was  non-concurred  by  the  council  the  next  day.  On  April 
I  the  house  observed  to  the  board  "that  they  humbly  apprehend 
a  compliance"  with  the  salary  instruction  would  "disserve  the 
true  interest  of  this  Province  in  divers  respects."  But  desiring 
to  give  honorable  support  to  the  governor,  the  offer  of  which 
he  has  rejected  because  of  the  instruction,  "this  House  esteem  it 
the  indispensable  duty  of  the  Council  and  Representatives  in 
General  Court  assembled  humbly  to  address  his  Majesty,"  to 
show  him  the  reason  of  the  non-compliance,  "that  so  His  Excel- 
lency the  Governor  may  have  his  Majesty's  royal  order  of  leave 
from  time  to  time  to  accept  the  sum  or  sums  that  may  be  granted 
for  his  support."  Two  days  later  the  council  accepted  the  pro- 
posal, and  the  procedure  was  carried  through. 

In  these  circumstances  Burnet  would  have  scorned  such  a 
proposal.^  But  Belcher  was  made  of  differenst  stuff,  and  wrote 
to  Newcastle  on  April  26  that,  seeing  "no  reason  to  think  they 
will  ever  do  anything  further,"  he  desired  leave  to  sign  the  bill 
of  October  28,  1730,  as  "a  much  better  security  for  a  Governor's 
support  than  anything  has  yet  been  done  in  this  Province."  At 
the  regular  May  session  of  the  new  assembly  the  two  houses 
passed  what  later  became  the  act  of  173 1-2,  chapter  5,  granting 
£5400  (including  the  lapsed  £2400  of  October  28,  1730),  "for 
his  past  services  since  his  taking  upon  himself  the  administration 
of  the  government,  and  further  to  enable  him  to  go  on  in  man- 
aging the  public  affairs."^  Belcher  sent  this  home,  weakly  ad- 
mitting that  it  was  "unanswerable"  that  "there  is  no  prospect 
of  anything  to  be  done  here  conformable  to  His  Majesty's  In- 
struction."    He  prayed  "the  Royal  Leave  to  sign  the  Bill."     A 


'  House  Journal,  sub  diebus. 

"  His  opinion  is  indicated  in  his  letter  September  30,  1728,  above. 

'Acts  and   Resolves,    H.   633. 


IN    PROVINCIAL    MASSACHUSETTS.  93. 

fixed  salary  ''I  am  now  fully  persuaded  will  never  be  done  tmless 
by  the  Legislature  of  Great  Britain."  This  despair  of  any  better 
result  was  the  burden  of  many  letters  from  Belcher  to  various 
persons  in  England.^  Coupled  with  it  was  the  strong  desire  of 
council  and  house,  and,  as  a  consequence  of  both,  the  governor's 
earnest  and  frequent  solicitation  th.at  he  be  granted  permission 
to  accept  the  support  as  the  court  chose  to  give  it.  Belcher,  with 
every  means  at  his  disposal,  "improved  his  interest"  to  move 
the  home  government  to  grant  his  request.  His  correspondence 
is  full  of  complaints  and  desire  for  relief  f  he  cannot  see  that 
"my  returning  to  Whitehall  could  be  of  any  service,"  but  only 
expense ;  he  believes  that  "they  will  not  for  the  future  recede 
from  the  quantum ;"  "Nor  can  I  see  the  receiving  my  support 
as  the  Assembly  will  give  it  can  in  the  least  measure  prevent  or 
defeat  what  his  Majesty  in  his  royal  wisdom  may  think  proper 
for  the  effectual  enforcing  his  present  Instruction  :""  he  cannot 
see  the  necessity  of  "starving  the  Governor  till  such  time  as  His 
Majesty  shall  put  his  Orders  into  effectual  execution."'* 

The  result  of  this  effort  was  that  by  orders  in  council  he 
was  granted  the  royal  permission  to  accept  the  grants  of  the 
general  court,  at  first  an  order  for  each  bill,^  accompanied  by  a 
repetition  of  the  original  requirement  of  fixed  salary,^  a  tediosu 
process  involving  much  vexation  and  expense  to  Belcher.  Finally 
on  November  6,  1735,  a  general  permission  to  pass  the  annual  act, 
without  reference  home  for  specific  orders  of  leave,  was  issued. 


'To  Newcastle,  Belcher  Papers,  476;  to  the  lords  of  trade,  ibid,  14, 
68,  307;  to  Martin  Bladen,  ibid,  63;  to  Townshend,  ibid,  92;  to  Alured 
Popple,  ibid,  469. 

'  To  Newcastle,  the  board  of  trade,  Walpole,  the  Attorney-general^ 
the  Lord  President,  hio  son  Jonathan  Belcher,  Jr.,  and  his  agent,  Richard 
Partridge.     Belcher  Papers,  6  Mass.  Hist.  Soc.  Coll.,  VI. 

'Belcher  to  lords  of  trade,  October  29,   1731. 

■"  Acts  and  Resolves,  II.  633. 

'  1731-2,  c.  5,  order  in  council  Nov.  9,  Acts  and  Resolves,  II.  633-5. 
1732-3,  c.  11;  do.  Feb.  21,  1733;  ibid,  661.  1733-4,  c.  12;  do.  Jan.  10, 
1734;  ibid,  703.  1734-5,  c.  18;  do.  Nov.  7,  1734;  ibid,  746.  1735-6,  c. 
23;    do.   Nov.  6,  1735;    ibid,  790. 

°  Provided  nevertheless  that  this  condesention  on  the  part  of  the 
Lrown  shall  not  in  any  wise  be  drawn  into  President  for  the  future,  nor 
be  in  any  degree  construed  to  enervate  the  validity  of  His  Majesty's  former 
Instruction   upon  this  Head."     Acts  and  Resolves,  II.  634. 


94  CONSTITUTIONAL   CONFLICT 

It  was  a  pure  surrender.  The  home  government  tried  to 
save  its  face  by  requiring  that  the  annual  act  of  allowance  be 
passed  at  the  beginning  of  the  session,  so  that  the  appearance 
of  compulsion  was  avoided ;  but  upon  the  crucial  point,  the  tem- 
porary determination  of  the  governor's  pay  for  one  year  at  a  time 
by  the  general  court,  the  province  won  a  complete  victory. 
Under  Shirley,  in  1741-2,  the  question  seemed  likely  to  revive. 
On  January  21  and  March  27,  in  successive  sessions,  he  de- 
manded a  regular  salary  of  £1000  sterling,  and  supported  the 
demand  with  an  elaborate  argument.  But  the  house  unani- 
mously declined  to  follow  the  suggestion,  and  upon  the  newly 
elected  house  taking  the  same  position,  he  accepted  their  grant 
in  the  accustomed  form,  thus  showing  that  the  controversy  was 
at  an  end. 

The  charter  power  of  the  purse  certainly  favored  the  con- 
tention of  the  house.  The  governor  might  argue  as  he  pleased 
about  the  desirability  on  general  principles  of  the  independence 
of  departments,  but  the  province  did  not  wish  an  independent  gov- 
ernor. Executive  weakness  and  preoccupation,  combined  with 
indifference  in  the  earlier  days  on  the  part  of  the  home  govern- 
ment, gave  the  province  an  opportunity,  that  was  fully  used,  to 
develop  a  sentiment  and  a  line  of  precedents  for  legislative  con- 
trol of  executive  officers'  salaries.  When  the  time  of  trial  came, 
in  1728,  this  was  found  to  be  too  strong  to  break. 


CHAPTER  VI.  CONTROL  OF  THE  TREASURY. 

Like  the  mother  country/  Massachusetts  bought  her  liber- 
ties. The  power  of  the  purse  was  a  weapon  with  which  she  ex- 
torted privilege  after  privilege.  It  is  peculiarly  important  there- 
fore to  describe  the  shape  this  power  took,  its  mode  of  action, 
and  the  extent  to  which  its  consequences  were  pushed.  We  shall 
c'onsider  in  this  chapter  various  phases  of  the  dispute  between  the 
prerogative  and  popular  bodies,  regarding  their  respective  finan- 
cial functions  and  powers.  The  control  of  the  treasury  will  be 
considered  from  the  points  of  view  of  income,  of  appropriation, 
and  of  audit. 

The  raising  of  revenue,  as  might  be  expected  in  an  English 
community  at  the  end  of  the  seventeenth  century,  was  in  all  points 
subject  to  the  consent  of  the  popular  body.  Taxes,  of  whatever 
sort,  were  levied  by  the  general  court,  composed  of  the  house, 
the  council,  and  the  governor,  acting  concurrently.  From  1634, 
almost  the  very  beginning  of  the  history  of  the  colony,  the  func- 
tion of  tax-levying  had  been  performed  not  by  the  assistants  alone, 
even  though  they  were  elected  by  the  general  court,  but  with  the 
concurrence  of  the  deputies,  who  were  directly  commissioned 
from  their  towns,  and  thus  more  immediately  dependent  upon  the 
people.  With  an  experience  of  fifty  years  of  taxation  entirely 
self-granted,  it  was  hardly  to  be  wondered  at  that  the  Andros 
system  met  stubborn  resistance.  Taxes  laid  by  a  nominated  coun- 
cil, it  was  thought,  with  no  sort  of  dependence  on  popular  elec- 
tion, were  unconstitutional  and  ought  to  be  resisted,  even  though 
equitably  levied  and  no  more  burdensome  than  under  the  old 
regime.  It  was  for  constitutional  principle  that  the  men  of  Ips- 
wich and  Taunton  protested  and  refused  to  pay  council-laid  taxes. 
Here  was  reason  enough  for  the  failure  of  Andros  unless  he 
should  be  equipped  with  sufficient  force  to  crush  a  people  stub- 
bornly attached  to  what  they  regarded  as  their  constitutional 
right.  A  wise  recognition  of  this  fact  secured  the  declaration  in 
the  charter  that  it  should  be  for  the  general  court  to  "impose  and 
levy  proportionable  and  reasonable  Assessments  Rates  and  Taxes 


'  Hallam,  Middle  Ages,  III.  162. 

(95) 


96  CONSTITUTIONAL   CONFLICT 

upon  the  Estates  and  Persons  of  all  and  everv  the  Proprietors  and 
Inhabitants  of  our  said  Province  or  Territory."'^ 

But  it  was  not  enough  that  the  consent  of  the  house  should 
be  requisite  to  taxation.  From  the  analogy  (however  fanciful) 
between  councillors  and  representatives  on  the  one  hand,  and 
lords  and  commons  on  the  other,  the  house  developed  an  ideal 
toward  which  it  strove,  an  arrangement  in  which  the  council  was 
deprived  first  of  the  power  of  initiating,  then,  at  least  theoretically, 
of  the  right  of  amending,  money  bills.  Since  1407  the  commons 
had  claimed  the  exclusive  right  to  initiate,  and  since  the  Resolu- 
tions of  1 67 1  and  1678,  to  amend. ^  So  we  find  the  Massachusetts 
tax  bills  invariably  originated  in  the  lower  house.  During  the 
first  ten  years  of  provincial  administration  there  seems  to  have 
been  no  objection  to  participation  by  the  council  in  the  framing 
of  the  tax  bill,  by  resolution  proposing  alterations,  or  by  confer- 
ence between  the  two  houses.^  It  became  customary  for  the  house 
to  send  up  "proposals,"  which  the  board  discussed  and  perhaps 
amended,  which  the  house  then  threw  into  the  form  of  a  bill  for 
passage  by  both  houses.  Under  Dudley,  on  November  3,  1702, 
when  consideration  was  upon  the  repair  of  Pemaquid  fort,  the 
house  refused  to  confer.  The  council  insisted  that  the  refusal  to 
confer  "upon  that  head  or  any  other  affair  referring  to  the  gov- 
ernment is  a  great  infringement  upon  the  rights  and  privileges 
of  the  Council."  At  this  time  the  house  yielded  and  a  conference 
was  held,  but  with  the  increasing  of  the  prerogative  tendency  in 
the  council  under  Dudley  and  Shute,  the  house  came  to  a  higher 
stand  on  the  point,  and  by  1721  always  refused  conferences  on 
money  bills,  as  "not  a  proper  subject  for  conference."*  While 
the  council  in  this  later  period  usually  refrained  from  attempting 
amendment,  at  any  rate  without  conference  between  the  two 
houses,  the  custom  was,  when  the  council  suggested  amendments 
whose  utility  the  house  could  appreciate,  for  the  house  to  with- 
draw its  former  bill  and  frame  a  new  one,  that  the  precedents  of 
house  origination  might  be  unbroken.^ 


'  Acts  and   Resolves,   I.    16. 

'  Medley,    English    Constitutional    History,   279,   280. 

"  E.  g.,  December  8,  1692 ;  June  15,  1694 ;  June  2-25,  1698. 

'  E.  g.,  December  9,  1725. 

"E.  g.,  the  excise  bill  of  1726,  Court  Records,  III.   186-199. 


IN    PROVINCIAL    MASSACHUSETTS.  97 

The  form  and  duration  of  acts  of  taxation  were  such  as  to 
ensure  popular  control.  The  direct  general  property  tax,  the  main 
financial  reliance  of  the  government,  was  granted  each  year  (until 
1700  usually  semi-annually)  as  a  single  lump  sum  in  pounds, 
shillings,  and  pence,  assigned  to  be  paid  by  each  town,  after  the 
manner  of  the  "country  rate"  of  the  colonial  days,  which,  when 
it  had  been  once  paid,  ceased  to  have  any  force.  This  provided 
some  65  per  cent,  of  the  revenue.  Some  20  per  cent,  came  from 
the  import  and  tonnage  duties.  These  duties,  though  permanent 
in  their  nature,  continuing  practically  unchanged  from  year  to 
year,  were  nevertheless  always  limited  expressly  by  the  terms  of 
the  authorizing  acts  to  the  duration  of  one  year.  Some  10  per 
cent,  of  the  revenue  came  from  the  excise  on  wines  and  spirits. 
This  was  passed  in  acts  of  varying  duration.  Until  1716  it  was 
annual,  like  the  impost,  with  which  in  fact  it  was  usually  joined 
in  one  bill.  After  1716  it  was  usually  granted  for  a  term  of  five 
years, ^  presumably  for  convenience  of  administration,  and  be- 
cause of  its  comparative  insignificance  as  a  means  of  financial 
control. 

For  the  immediate  needs  of  the  treasury,  however,  in  the  pay- 
ment of  obligations,  the  government  was  much  more  dependent 
on  the  bills  of  credit,  and  their  authorization  came  to  be  regarded 
as  the  "supply"  of  the  treasury,  while  the  taxes  were  looked  upon 
as  a  fund  for  sinking  them,  or  more  remotely  as  a  means  of  keep- 
ing up  their  credit.  The  supply  was  made  in  a  resolve,  which  came 
at  least  twice  in  the  year,  but  more  often  in  emergencies ;  it  may 
even  be  said  that  this  fact  determined  the  number  of  sessions  a 
court  should  hold,  since  the  granting  of  supply  would  be  regarded 
by  the  administration  as  the  main  business  justifying  the  holding 
of  a  session  of  the  court.  Burnet  supposed  this  form  of  supply, 
by  resolve  instead  of  act,  to  have  been  adopted  because  resolves 
were  not  required  to  be  transmitted  to  England  for  the  approval 
or  veto  of  the  privy  council.  He  argued  the  matter  with  the  house 
m  1729,^  and  had  the  better  of  it  for  logic  and  ingenuousness. 
The  practice  was  explicitly  forbidden  in  Dummer's  and  Belcher's 
instructions,  and  was  discontinued  after  September,  1729. 


'  E.  g.,  Act  1716-7,  c.  1. 

'  Court  Records,  XIV.  273. 

7 


98  CONSTITUTIONAL    CONFLICT 

It  was  regarded  as  a  settled  principle  then  that  the  raising  of 
revenue  should  be  by  the  representative,  not  the  appointive,  body 
in  the  government.  Whether  or  not  the  supreme  representative 
body  of  the  empire  should  have  a  part  was  not  questioned  practi- 
cally till  many  years  after  the  charter  was  granted,  but  a  hint  was 
given,  which  might  have  prepared  the  colonists  for  what  was 
to  come  in  1765.  An  act  was  passed  by  the  general  court  October 
13,  1692,  in  which  was  included  the  declaration  that  "no  aid,  tax, 
tallage,  assessment,  custom,  loan,  benevolence,  or  imposition  what- 
soever" should  be  "levied  on  any  of  their  Majesties'  subjects  or 
their  estates  on  any  color  or  pretence  whatsoever,  but  by  the  act 
and  consent  of  the  Governor,  Council,  and  Representatives  of  the 
people  assembled  in  General  Court/'^  There  is  nothing  to  indi- 
cate that  this  was  a  conscious  protest  against  parliamentary  tax- 
ation, but  the  privy  council,  perhaps  suspecting  colonial  insubor- 
dination and  claim  of  self-sufficiency,  disallowed  the  act,  as  Chal- 
mers says,  on  Chief  Justice  Holt's  advice,  "because  it  contained 
what  none  of  his  predecessors  had  ever  conferred."  The  reasons 
of  disallowance  given  in  the  privy  council's  letter  were  the  pres- 
ence in  the  act  of  clauses  making  lands  and  heritages  free  from 
■'year  day  and  wast,  escheat  and  forfeiture  upon  death  of  par- 
ents," except  in  cases  of  high  treason,"  which  is  repugnant  to  the 
Laws  of  England,"  and  for  requiring  bail  to  be  taken  in  all  cases 
but  treason  and  felony,  "which  with  other  privileges  proposed  by 
the  said  Act  not  having  been  as  yet  granted  by  His  Majesty  in  any 
of  the  plantations  it  was  not  thought  fit  in  His  Majesty's  absence 
to  allow  the  same."- 

But  leaving  aside  the  question  of  parliamentary  taxation, 
Massachusetts  was,  in  respect  to  financial  control  of  the  local 
administration,  far  in  advance  of  those  provinces  where  the  "rev- 
enue" was  fixed  for  periods  of  years  and  subject  to  no  alteration 
by  the  legislature  during  its  continuance,  and  was  to  that  degree 
in  a  better  strategic  position  for  the  constitutional  conflict. 

The  control  of  expenditure  was  a  matter  of  more  immediate 
concern  to  the  conflict  between  prerogative  and  privilege.  There 
was  more  uncertainty  about  the  rights  and  powers  of  the  two 
contestants,  and  more  shifting  of  position  in  the  course  of  the 
struggle.    Yet  the  charter  provision  seemed  too  plain  to  leave  room 

'  Acts  and  Resolves,  I.  40. 
'  Ibid,  41. 


IN    PROVINCIAL    MASSACHUSETTS.  99 

for  dispute.  The  taxes  raised  by  the  general  court  were  "to  be 
issued  and  disposed  of  by  warrant  under  the  hand  of  the  Gov- 
ernor .  .  .  with  the  advice  and  consent  of  the  Council  for 
our  service  in  the  necessary  defence  and  support  of  the  govern- 
ment of  our  said  province  or  territory,  and  the  protection  and 
preservation  of  the  inhabitants  there  according  to  such  acts  as  are 
or  shall  be  in  force  within  our  said  Province."^  That  is  to  say, 
the  general  court  should  raise  money  and  grant  it  to  the  king,  who 
should  spend  it  for  the  good  of  the  province  through  the  body 
presumably  best  qualified  for  that  prudential  service,  the  gov- 
ernor advised  by  the  council ;  but  there  should  be  a  degree  of 
popular  control  in  that  the  main  channels  of  outgo,  defence  and 
the  support  of  the  government,  were  to  be  regulated  by  the  gen- 
eral court.  The  phrase  "according  to  such  acts"  evidently  meant 
general  provisions,  such  alone  as  could  be  made  by  a  legislature. 
Payment  of  the  specific  obligations  which  the  province  should 
incur  under  these  acts,  was  to  be  ascertained  and  allowed  by  the 
executive  body,  being  a  merely  ministerial,  administrative  act. 
Such  was  the  practice  of  other  provinces,  at  least  in  the  early 
part  of  the  period.-  But  Massachusetts,  with  her  past,  could  not 
allow  the  imposition  of  such  a  system  without  a  struggle ;  and 
the  outcome  of  this  struggle,  one  of  the  longest  and  most  stub- 
bornly fought  of  all,  was  a  wide  divergence  from  the  spirit  of 
the  charter  and  instructions.  Massachusetts  did  not  win  the  form, 
as  she  did  in  the  salary  dispute,  but  she  won  much  of  the  sub- 
stance. 

The  popular  ideal,  as  contrasted  with  the  above  system  evi- 
dently provided  in  the  charter,  was  popular  representative  con- 
trol of  money,  beyond  the  point  of  its  entrance  into  the  treasury, 
and  of  more  detailed  and  specific  character  than  could  fairly  be 
indicated  by  the  term  legislation.  Xot  only  the  raising,  but  also  the 
spending  of  public  money,  should  be  by  the  general  court ;  and 
in  the  concurrent  action  of  the  two  houses,  not  the  council  as 
the  charter  intended,  but  the  house,  should  have  the  preponder- 
ating voice.  The  seventeenth  century,  the  period  of  the  self- 
governing  quasi-commonwealth,  gave  a  line  of  precedents  which 
essentially,  though  not  formally,  favored  the  claim  of  the  house. 


Acts  and  Resolves,  I.  16. 
Greene,  Provincial  Governor,  121. 


lOO  CONSTITUTIONAL    CONFLICT 

The  "country  treasurer"  was  annually  elected^  in  the  general 
court  of  election,  and  his  issuance  of  money  from  the  treasury 
might  be  only  upon  the  command  of  the  assistants  or  the  general 
court,  whose  servant  he  was.'  While  the  assistants  were  not  re- 
garded as  inferior  to  the  deputies  in  those  days,  it  was  because  they 
were  recognized  as  the  complete,  sufficient  depositary  of  the  tradi- 
tional ideal  of  the  colony.  This  character  having  passed  largely  to 
the  house  with  the  new  charter,  the  assumption  by  the  house  of  a 
preponderating  influence  on  the  whole  financial  process,  came  to 
be  regarded  as  an  object  of  the  utmost  importance.  Under  what- 
ever form  the  law  might  take,  an  arrangement  practically  amount- 
ing to  this  ideal  must  be  attained.  This  is  not  presented  as  in 
any  degree  contravening  the  legal  distribution  of  powers,  but 
only  to  put  into  form  the  sentiment  which  seems  to  have  been 
held  by  the  colonists,  and  thereby  to  explain  the  consistent  course 
followed  by  the  house,  of  encroachment  on  the  charter  powers 
of  the  council. 

For  the  first  ten  years  of  the  provincial  period,  the  executive 
as  well  as  the  legislature  being  almost  completely  under  colonial 
influence,  (except  in  Bellomont's  short  term),  there  was  little 
evidence  of  this  spirit.  But  with  the  opening  of  the  eighteenth 
century,  and  to  a  constantly  increasing  degree  under  Dudley  and 
Shute,  we  observe  the  house  encroaching  on  the  council's  dis- 
cretionary power  of  issue  from  the  treasury,  making  separate 
legislative  acts  for  the  payment  of  province  debts,  and  confining 
issues  from  the  treasury  to  such  matters  as  they  had  passed  upon. 
The  climax  was  reached  under  Shute,  when  in  1721  it  was  pro- 
vided in  a  supply  resolve^  that  not  even  the  muster  rolls  accord- 
ing to  legal  establishment  should  be  paid  until  they  had  been 
passed  upon  and  approved  by  the  house.  From  this  extreme 
claim,  however,  as  will  be  seen  below,  it  became  necessary  to 
recede. 

The  control  exercised  by  the  house  throughout  the  period 
was  twofold  —  appropriation  and  audit,  the  determination  first 
where  the  money  should  go,  later  whether  or  not  it  had  gone 
there.    These  will  be  considered  in  turn. 


'  This  practice  was  continued  during  the  provincial  period. 
^  Osgood,  The  American  Colonies,  I.  492,  493. 
=•  Resolve  1721,  c.  42. 


IN    PROVINCIAL    MASSACHUSETTS.  lOI 

Appropriation  was  generally  understood  to  be  in  the  power 
of  the  general  court.  Issue  from  the  treasury  "according  to 
such  Acts"  was  the  charter  recognition  of  it,  and  another  bit  of 
evidence  is  a  representation  made  by  the  board  of  trade  to  the  king 
April  15,  1697,  on  the  matter  of  salaries;,  where  it  is  said  that 
the  revenue  of  Massachusetts  (by  the  new  charter)  "is  disposa- 
ble by  the  Assembly  there. "^  The  right  to  originate  appropria- 
tions seems  not  to  have  been  confined  to  the  house,  nor  was  there, 
on  most  occasions,  any  unwillingness  to  confer  with  the  council, 
though  we  find,  e.  g.,  in  August,  1728,  and  October,  1703"  in 
times  of  heated  discussion,  the  house  was  unwilling  to  confer 
with  the  council  on  the  bill  for  the  governor's  support,  though 
willing  to  confer  "on  the  subject  matter  of  the  bill." 

Three  forms  of  appropriation  may  be  distinguished,  first 
the  general  terms  in  the  preamble  of  each  supply  bill,  designating 
the  purpose  for  which  the  money  was  granted  to  the  king;  sec- 
ond, the  contingent  authorization  of  expenditure  or  actual  appro- 
priation in  general  terms ;  and  third,  specific  appropriations, 
whether  in  advance  or  ex  post  facto. 

The  purposes  for  which  the  taxes  of  various  sorts  were 
declared  to  be  raised,  the  first  species  of  appropriation,  were 
necessarily  stated  in  general  terms  for  the  most  part,  but  a 
tendency  may  be  observed  to  the  use  of  more  and  more  specific 
language.  The  tax  of  1692  was  granted  in  these  terms :  "We 
.  being  sensible  of  the  necessity  of  raising  moneys  for  the 
defence  of  Their  Majesties'  subjects  and  interests  and  prosecu- 
tion of  the  war  against  their  French  and  Indian  enemies,  and 
for  defraying  of  other  the  public  charges  of  the  Province"  do 
give  "unto  their  most  excellent  Majesties,  their  heirs  and  suc- 
cessors, to  the  ends  and  intents  aforesaid"  a  rate  or  tax.  De- 
fence and  the  support  of  the  government,  then,  were  the  objects 
to  which  the  public  money  might  be  applied.  Under  this  very 
vague  limitation  the  governor  and  council  were  left  free  to 
decide  in  their  own  discretion  upon  the  specific  application.  But 
almost  immediately  a  tendency  to  greater  precision  in  these  sup- 
ply bills  began  to  manifest  itself.  A  good  example  of  the  new 
sort  is  the  tax  of  1697,  "providing  for  the  safety  and  defence 
of  His  Majesty's  subjects  and  interests   in  this   Province;   for 

'  N.  Y.  Colonial  Documents,  IV.  263. 
^  Court  Records,   XIV.   133,   134,  419. 


I02  CONSTITUTIONAL    CONFLICT 

repairing  and  setting  in  order  the  Castle  and  fortifications  about 
the  same,  and  farther  strengthening  and  enforcement  thereof ; 
the  purchasing  of  provisions,  ammunition,  and  other  stores  of 
war,  the  fitting,  victualling,  and  manning  of  the  Province  Galley 
and  fireship,  the  hire  of  transports  and  other  vessels  that  have 
been  here  taken  up  and  employed  in  His  Majestie's  service,  the 
subsisting  of  seamen  and  soldiers  posted  in  garrisons  and  sent 
forth  in  pursuit  of  the  enemy,  and  for  the  support  of  the  gov- 
ernment, and  answering  of  the  incident  and  contingent  charges 
in  and  about  the  same  .  .  .  and  of  other  the  just  debts  due 
from  this  Province  for  the  payment  of  such  salaries,  gratuities, 
and  allowances  as  have  been  or  shall  be  made  by  the  General 
Assembly,  and  all  such  allowances  and  payments  as  are  directed 
by  any  act  of  this  Province,  to  be  paid  out  of  the  public  treasury ; 
and  for  the  further  support  of  the  government,  defence  of  the 
Province,  and  prosecution  of  the  war  against  His  Majestie's 
enemies ;  and  for  no  other  ends  or  uses  whatsoever."  Here  v/ere 
the  forms  which  expenditure  for  defence  and  the  support  of  the 
government  might  take,  well  defined.  Specific  objects  were  men- 
tioned, e.  g.  the  province  galley  and  fireship,  and  the  discretion 
of  the  governor  and  council  was  limited  by  a  prohibition  laid  upon 
them  of  going  beyond  these  authorizations  in  the  terms  of  the 
act.  The  general  court  granted  the  taxes,  as  they  were  required, 
to  the  king,  but  he  was  to  spend  the  money  for  these  objects  pre- 
scribed, and  "for  no  other  ends  or  uses  whatsoever."  The  free- 
dom with  which  his  Majesty  might  use  the  gift  of  his  loyal 
subjects  was  usually  limited  either  in  this  way  or  in  the  form 
used  in  the  act  of  1699-0/  "to  the  end  beforementioned,  and 
for  such  other  use  and  uses  as  shall  be  limited  and  appointed 
by  this  court  and  no  other."  But  this  phrase  was  dropped  from 
the  tax  act  of  September,  1703,  and  did  not  reappear  till  the 
famous  supply  resolve  of  1721,  when  it  was  the  occasion  of  the 
dispute  that  resulted  in  the  reservation  by  the  house  of  the  right 
to  pass  muster  rolls. 

"Incident  and  contingent  charges  in  the  support  of  the  gov- 
ernment" was  an  item  of  much  importance  in  the  list  of  author- 
ized expenditures,  for  the  part  it  played  in  discussion,  if  not  for 
its  intrinsic  importance.  Manifestly,  for  convenience  of  admin- 
istration,  since  the  house  could  not  be  in   session  all  the  time, 

'  Acts  and  Resolves.  I.  386. 


IN    PROVINCIAL    MASSACHUSETTS.  IO3 

a  certain  amount  of  discretion  must  be  left  with  the  council  to 
pay  unforeseen  charges  (e.  g.  expresses,  and  the  entertainment 
of  Indian  messengers),  if  effective  provision  were  to  be  made 
for  the  payment  of  the  public  debts.  The  elasticity  of  such  an 
indefinite  term  caused  the  house  to  regard  it  jealously,  yet  we 
find  it  included  in  the  supply  acts  almost  uniformly  until  that  of 
July  3;  1708.  From  then  until  the  misunderstanding  under  Shute 
it  was  omitted.  In  June  of  1721  the  house  insisted  on  a  supply 
resolve  limiting  the  discretion  of  the  council  to  certain  enumer- 
ated uses  "and  no  other  ends  or  uses  whatsoever," 'gaining  also 
the  much  more  significant  power  of  examining  muster  rolls. 
The  following  year  the  problem  was  solved  finally  in  the  method 
of  the  resolve  of  Alarch  22,  1722,^  a  method  followed  from  that 
time  on,  which  granted  £8000  for  soldiers'  wages  and  subsistence, 
£3700  for  debts  of  the  province  and  allovv^ances  by  the  court,  and 
£300  for  expresses,  "together  with  all  other  unforeseen  charges 
whether  by  invasion  or  otherwise  arising  in  the  recess  of  this 
court  that  demand  prompt  payment."  The  troublesome  discre- 
tion should  be  allowed  to  the  council,  but  it  should  extend  only 
over  an  insignificant  part  of  the  budget,  three  hundred  out  of 
twelve  thousand  pounds  (2^%). 

The  tracing  to  its  conclusion  of  the  item  of  "contingent 
charges"  has  necessitated  a  slight  anticipation.  Coming  to  the 
second  species  of  appropriation,  viz.,  the  contingent  authorization 
of  expenditure  in  general  terms,  we  deal  with  what  seems  to  have 
been  the  sole  appropriative  function  of  the  house  as  contem- 
plated by  the  charter.  By  acts  of  the  general  court  were  regu- 
lated the  rates  of  pay  and  subsistence  for  all  branches  of  the 
military  and  naval  service  —  at  least  after  1696.-  The  establish- 
ment of  pay  for  councillors  and  representatives  was  also  by  act ; 
and,  by  an  inconsistency  which  Burnet  did  not  neglect  to  point 
out,  these  salaries  were  practically  payable  to  the  office  rather 
than  to  the  man,  that  is,  to  the  representative  for  the  time  being, 
an  impersonal  permanence  which  the  house  refused  to  extend  to 
the  pay  of  the  governor. 

Casual  payments  were  also  authorized,  in  the  shape  of 
bounties,  whether  industrial,  for  the  slaying  of  wolves,  the  pro- 
duction of  hemp,  etc.,  wi.ich  were  usually  permanent;  or  mili- 

'  Acts  and  Resolves,  II.  235,  236. 
^  See  below,   Chapter  VII. 


I04  CONSTITUTIONAL    CONFLICT 

tary,  for  enlistment,  or  Indian  scalps,  which  rested  on  annual 
or  temporary  acts. 

The  third  and  last  class  of  appropriations  to  be  described 
is  the  specific  allowances.  These  included  first,  appropriations 
in  advance,  as  for  public  works,  bridges,  fortifications,  pensions 
to  individual  soldiers  (there  being  no  general  pension  law),  and 
miscellaneous  "allowances"  for  various  purposes ;  and  secondly, 
what  might  be  called  ex  post  facto  specific  appropriation,  the 
ordering  of  allowances  or  gratuities  to  officers  of  the  province 
(including  a  gradually  expanding  salary  list),  the  recompensing 
of  specific  services  already  performed,  the  paying  for  goods  pur- 
chased by  the  province, —  in  a  word,  payment  of  the  "debts  of 
the  province,"  one  of  the  general  purposes  for  which,  as  stated 
in  their  preambles,  the  supply  acts  were  passed.  This  indicates 
the  relation  between  what  we  have  called  the  first  and  third 
modes  of  appropriation.  They  were  not  mutually  exclusive,  but 
were  two  different  views  of  one  process.  The  general  court 
granted  money  to  the  king  for  certain  purposes.  Not  content 
w^ith  a  greater  and  greater  precision  in  the  general  definition  of 
these  purposes,  it  took  care  to  prescribe  the  modes  and  the  spe- 
cific forms  which  these  purposes  should  take,  ignoring  the  be- 
stowal of  this  function  by  the  charter  upon  the  council. 

The  right  to  audit  the  public  acounts,  as  a  means  of  popular 
control  of  administration,  had  been  long  contended  for  by  the 
commons  of  England  with  varying  success,  finally  complete  in 
1667.^  The  representatives  in  Massachusetts  were  not  slow  to 
develop  the  same  principle ;  and  against  this,  if  the  term  audit  be 
interpreted  in  its  usual  sense,  the  home  government  and  its  agents 
had  no  objection.  The  right  was  in  fact  guaranteed  in  the 
charter.  The  accounts  of  the  treasurer  were  submitted  to  the 
house  annually  (until  1696  semi-annually),  inspected  by  them, 
and  passed  as  a  resolve  of  the  general  court.  These  accounts 
were  minutely  itemized,  and  the  house  was  thus  enabled  to  find 
out  precisely  what  payments  had  been  ordered  by  the  governor 
and  council,  and,  if  it  seemed  necessary,  could  present  specific 
payments  as  grievances.  The  money  being  gone  from  the  treas- 
ury, these  protests  against  items  as  "not  according  to  any  act" 
would  have  no  more  eflFect  than  to  furnish  the  council  a  guide 
in  future  as  to  the  wishes  and  policy  of  the  house.     But  they 

^  Medley,  English  Constitutional  History,  242. 


IN    PROVINCIAL    MASSACHUSETTS.  IO5 

served  another  purpose  in  giving  opinion  an  opportunity  to  form 
itself  on  specific  expenditures,  and  in  showing  the  house  how 
and  where  to  tie  the  council's  hands  by  greater  precision  in 
future  appropriations. 

At  one  time  the  house  attempted  to  extend  this  control  and 
make  it  more  effective  by  resolving,  that  if  the  treasurer  should 
answer  such  of  the  council's  drafts  as  were  not  conformable  to 
the  supply  act,  those  items  in  his  account  would  not  be  allowed 
by  the  house  on  audit.  This  would  mean  the  introduction  of  a 
second  discretion  unknown  to  the  charter  (viz.,  that  of  the 
treasurer,  in  whose  election  the  house  was  predominant),  in 
addition  and  superior  to  that  of  the  council,  in  the  interpretation 
of  the  acts  of  supply  and  the  applicability  thereto  of  spec'fic 
payments.  The  attempt  was  strenuously  resisted  by  the  council,^ 
and  the  outcome  was  inconclusive.  The  occasion  of  this  dispule 
was  a  vote  of  the  council  authorizing  certain  commissioners  on 
an  Indian  negotiation  to  draw  on  the  treasurer  for  what  mig'it 
be  "further  necessary"  for  their  expenses,  and  a  second  vott^ 
approving  the  commissioners'  bill  of  £390,  to  meet  which  the 
council  "thought  the  honor  of  the  government  concerned."  This, 
the  house  thought,  looked  "little  short  of  a  dissolution  of  the 
very  foundations  of  our  happy  constitution;"  the  council  might 
as  well  lay  taxes ;  perhaps  if  the  commissioners  had  drawn 
£10,000  the  council  would  have  felt  in  honor  bound  to  order 
payment.^  The  incident  was  left  unclosed,  and  no  more  was 
done  about  the  matter,  but  the  treasurer  and  council  had  received 
the  thoughts  of  the  house  in  no  doubtful  terms,  which  was  per- 
haps all  that  was  expected. 

This  was  only  incidental  to  the  settlement,  now  near  at 
hand,  of  the  whole  question  of  financial  control,  and  the  relation 
thereto  of  the  several  governmental  organs. 

The  passing  of  muster  rolls  was  the  occasion  of  one  of  the 
sharpest  of  all  disputes  between  governor  and  house.  It  was 
an  attempt  to  establish  a  double  control,  for  by  general  laws  the 
wages  of  officers  and  soldiers  and  rates  of  subsrstence  were  fixed 
in  advance.  The  question  was  only  whether  or  not  the  actual 
allowance  for  payment  of  this,  that,  and  the  other  garrison  or 
party  of  soldiers,  should  be  by  the  governor  and  council  in  the 

'Court  Records,   XII.   155.     September,   1723. 
'Ibid,  160. 


I06  CONSTITUTIONAL   CONFLICT 

form  of  an  executive  order  alone,  or  by  the  house,  council,  and 
governor  in  the  form  of  a  resolve,  followed  by  the  executive 
order,  which  was  thereby  rendered  purely  perfunctory.  As  the 
legal  limits  of  the  expenditure  were  set  by  the  general  court  in 
any  case,  this  right  was  insisted  on  by  the  house  for  the  sake  of 
a  control  not  financial  but  administrative.  It  was  a  financial  pre- 
text or  cover  for  an  attempt  at  control  by  the  house  over  mili- 
tary affairs,  the  movement  of  troops  and  the  size  of  garrisons. 

Down  to  1 72 1  this  purely  ministerial  function  of  giving 
approval  of  the  muster  rolls  was  performed  by  the  governor  with 
the  advice  and  consent  of  the  council,  according  to  the  plain  sense 
of  the  charter.  The  act  of  1694,  "In  Addition  to  the  Act  for 
General  Privileges,"  though  disallowed,  had  its  effect  on  the  action 
of  the  council  for  several  years,  in  making  the  form  of  their  order 
a  little  more  precise.  Each  warrant  for  issue  from  the  treasury 
had  to  express  particularly  the  act  by  which  the  money  was 
raised  and  for  what  particular  service  under  that  act  the  same 
was  designed. 

In  June,  1721,  at  the  climax  of  the  dispute  between  Shute 
and  the  house,  the  latter  body  insisted  on  adding  to  the  supplv 
resolve,  after  the  enumeration  of  objects  for  which  the  supply 
might  be  used,  the  words,  "and  for  no  other  uses  and  intents 
whatsoever."  The  council  protested  against  such  a  phrase  as 
contrary  to  precedent,  and  as  likely  to  cause  inconvenience  to 
administration,  "incident  charges"  not  being  provided  for.  But 
the  house  would  not  yield,  and  the  result  of  a  ten  days'  dispute 
was  a  resolve  passed  July  6,^  which  restored  indeed  to  the  council 
the  clause  providing  for  unforeseen  charges  in  the  recess  of  the 
court,  but  secured  the  following  proviso,  an  innovation  in  favor 
of  the  house:  "The  Muster  Rolls  or  any  account  of  charge  or 
expense  on  the  Castle  Forts  or  Garrisons  shall  not  be  paid  until 
such  Muster  Roll  or  Account  of  Charge  or  Expence  hath  been 
examined  and  allowed  of  by  this  Court."  Thereafter  for  ten  years 
practically  every  muster  roll  appeared  in  the  legislative  as  well  as 
in  the  executive  records  of  the  council,  its  action  in.  the  latter  capac- 
ity being  purely  perfunctory.  The  house  was  accustomed  to  refer 
the  rolls  to  a  committee,  which  would  examine  and  report  that 
the  persons  did  duty  as  the  rolls  set  forth,  and  that  the  sums 
should  be  allowed  to  the  persons  therein  according  to  the  roll,, 

'  Resolve  1721,  c.  42. 


IN    PROVINCIAL    MASSACHUSETTS.  IO7 

that  the  account  was  "right  cast  and  well  vouched,"  now  and 
then  omitting  an  item  from  a  roll  presented,  because  of  the  failure 
of  the  person  entered  to  serve  the  time  recorded.^  To  the  coun- 
cil's suggestion  of  a  joint  committee  to  examine  the  rolls  in  order 
to  save  time,  the  house  uniformly  made  refusal.-  It  was  in  their 
opinion  the  business  of  the  house  alone  to  originate  this  legisla- 
tion, and  it  was  for  the  council  and  governor  merely  to  concur 
and  consent. 

Shute  included  this  matter  as  one  of  the  charges  in  his  gen- 
eral arraignment"  of  the  encroachments  of  the  house,  rightly  ex- 
plaining it  as  a  cover  for  grasping  control  of  the  militia.  The 
house  defended  itself  with  the  disingenuous  plea,  that  it  was 
merely  desirous  of  making  sure  that  the  payments  on  the  rolls 
were  for  service  actually  performed  according  to  law,  not  to  see 
if  its  orders  had  been  obeyed  —  ignoring  the  real  issue,  that  this 
function  of  verification  belonged  by  charter  to  the  governor  and 
council.  Lieutenant-governor  Dummer,  who  held  the  chief  com- 
mand in  the  province  during  the  five  and  a  half  years  between 
Shute's  unceremonious  departure  and  Burnet's  arrival,  regarded 
the  new  system  as  a  necessary  evil,  which  he  must  accept  and 
endure,  contenting  himself  with  "exhorting"  the  general  court 
in  his  speech  on  May  29,  1724,  "in  your  next  supply  to  his  Majesty 
for  the  service  of  this  Province  to  avoid  such  restrictions  as  have 
of  late  very  much  employed  us."* 

Burnet  made  a  strenuous  fight  on  this  issue,  but  it  was  over- 
shadowed by  the  salary  question,  and  neither  matter  was  settled 
during  his  short  term.  Having  early  assented  to  one  resolve  in 
the  new  form,^  he  refused  his  consent,  though  strongly  urged 
by  the  house,  to  the  supply  resolve  in  the  summer  session  of  1729, 
thinking  it  improper  to  consent  to  any  form  of  supply  but  such 
as  was  practiced  before  1721.*'  He  argued  that  the  governor's 
right  as  previously  enjoyed  had  been  wrested  away  by  the  house 
in    1 72 1,  not  by  act  but  by  resolve  in  order  that   it  might  not 


^  Massachusetts  Archives,  XCI.  30. 
=  Court  Records,   XI.  192,  258. 

^  Shute's  Memorials  of  August,  1723,  and  March,  1724.       Brit.   Col. 
Papers. 

'  Court  Records,  XII.  172. 
■^Resolve  1728-9,  c.  185. 
'Court    Records,    XIV.    253. 


I08  CONSTITUTIONAL    CONFLICT 

be  vetoed  by  the  king.^  "This  is  the  very  thing  that  Mr.  Att'y  and 
Soil.  General  observe  upon  the  third  article  of  Governor  Shute's 
complaint."^  Upon  Burnet's  death  the  supply  resolve  was  con- 
sented to  by  Lieutenant-governor  Dummer  as  presented  by  the 
house.  But  he  wrote  home  for  advice/  saying  that  there  had 
been  opposition  every  year  in  council,  but  the  "necessity  of  a  sup- 
ply of  the  Treasury  for  the  support  of  the  government  has 
weighed  with  me  in  the  passing  of  it,  as  it  has  bin  done  for  eight 
years  past  having  no  prospect  of  retrieving  that  article  at  pres- 
ent ;  But  it  seems  to  me,  that  the  clause  in  the  charter  upon  which 
that  matter  depends,  does  require  an  explanation  from  the  Crown, 
or  it  will  be  every  year  an  occasion  of  further  contention  in  the 
Legislature,  to  the  prejudice  of  His  Majesty's  service  and  the 
public  good."* 

By  Belcher  the  matter  was  brought  to  a  final  issue,  and  set- 
tled, at  least  formally,  in  the  council's  favor.  Dummer,  in  his 
second  term  as  commander  in  chief,  (that  is,  after  Burnet's  death) 
had  been  explicitly  instructed^  not  to  consent  to  the  new  form  of 
supply  resolve ;  and  the  same  instruction  was  continued  to  Belcher, 
and  was  early  communicated  by  him  to  the  house.*^  The  preamble 
to  the  instruction  showed  upon  what  experience  the  home  gov- 
ernment founded  its  policy :  "Whereas  an  unwarrantable  practice 
hath  of  late  years  been  introduced  ...  of  raising  money  and 
supplying  the  current  service  of  the  year  by  a  vote  or  resolve  in- 
stead of  by  an  act  of  Assembly,  and  of  reserving  thereby  to  the 
said  Assembly  a  power  of  determining  what  accounts  shall  or 
shall  not  be  paid  even  after  service  performed  expressly  contrary 
to  the  tenor  of  the  charter"  —  therefore  it  was  required  for  the 
future  "that  no  money  be  raised  or  bills  of  credit  issued  .  .  . 
but  by  Act  or  Acts  of  Assembly,  in  which  Act  or  Acts  one  or 
more  clauses  of  appropriation  may  be  inserted,  but  that  the  issu- 
ing of  all  moneys  so  raised  or  bills  of  credit  be  left  to  our  Gov- 
ernor or  Commander  in  Chief  of  our  said  Province,  with  the 
advice  and  consent  of  our  Council  accordinsr  to  their  charter. 


•Court    Records,    XIV.    273. 

"  Acts  and   Resolves,   II.  574. 

'Resolve  1729-0,  c.  68.     Acts  and  Resolves,  XI.  435,  306. 

*  Acts  and  Resolves,  II.  222. 

"House  Journal,   May  28,   1730. 

"Court   Records,    XV.    158-160. 


IN    PROVINCIAL    MASSACHUSETTS.  IO9 

subject  nevertheless  to  a  future  inquiry  at  the  then  present  or 
any  future  Assembly,  as  to  the  application  of  such  monies." 

Accordingly  Belcher  announced,  on  April  2,  1731,  in  his 
speech  to  the  general  court  that  "for  the  future  all  accounts  of 
service  done  for  the  Province  are  to  be  brought  directly  to  the 
Governor  and  Council  and  to  them  only  for  passing  and  paying."^ 
The  house  did  not  let  this  go  without  answer,  and  sent  a  message 
on  April  20,-  arguing  that  the  house  had  a  right  to  pass  accounts, 
because  there  would  otherwise  be  no  means  of  stopping  illegal 
payments.  As  to  precedents  before  1721,  it  was  said  that  imme- 
diately after  the  coming  of  the  charter  "accounts  were  passed  on 
for  payment  by  the  House  after  service  performed  and  common 
accounts  of  wages  and  subsistence  not  called  muster  rolls  were 
not  only  brought  originally  to  the  House  for  their  inspection  and 
allowance,  but  were  also  sent  down  for  that  end  by  the  Hon, 
Board,"  and  also  every  year  since,  as  was  shown  in  the  minutes  of 
the  proceedings,  annually  sent  to  England  by  the  secretary,  and  not 
hitherto  discountenanced  by  the  home  government.  It  was  true, 
as  has  been  shown  above,  that  the  house  had  been  receiving  and 
passing  accounts  for  service  performed,  but  these  had  been  specific 
appropriations  for  objects  not  otherwise  provided  for,  and  had  not 
been,  like  muster  rolls,  mere  authentications  of  accounts  already 
made  legal  by  previous  act. 

Here  we  see  the  issue  defined,  and  the  parties  in  position. 
In  April,  1 731,  with  great  reluctance  the  house  granted  a  supply 
of  £6000  according  to  the  instruction,  omitting  the  clause  which 
would  have  restricted  drafts  to  accounts  passed  by  the  house,^ 
but  thereafter  they  refused  to  depart  from  their  previous  position. 
In  contrast  with  his  vacillation  on  the  salary  question,  the  gov- 
ernor was  firm  in  this  case,  and  the  resulting  deadlock  continued 
for  two  and  a  half  years.  Though  the  lack  of  supply  caused  great 
hardship  to  the  creditors  of  the  province,  this  did  not  affect  the 
governor's  pocket,  as  the  general  court  could  and  regularly  did 
make  special  supply  for  his  salary  allowance.  Perhaps  for  this 
reason  he  could  more  clearly  see  the  constitutional  significance 
of  the  issue.     Firm  before  the  house,  he  also  steadfastly  advised 


'  Court  Records,  XV.  57. 
='  Ibid,  67. 
^'Ibid,  78. 


no  CONSTITUTIONAL    CONFLICT 

the  home  government  to  persist.  He  wrote  to  Newcastle/  "All 
the  struggle  in  that  matter  is  for  power;  if  every  account  of  the 
Province  must  be  subjected  to  a  House  of  Representatives  the 
King's  Governor  will  be  of  very  little  signification.  They  that 
have  the  control  of  the  money  will  certainly  have  the  power,  and 
I  take  the  single  question  on  this  head  to  be  whether  the  King 
shall  appoint  his  own  Governor  or  whether  the  House  of  Repre- 
sentatives shall  be  Governor  of  the  Province."^  This  was  only 
two  months  after  the  house  had  shown  equal  determination  in  a 
vote  on  November  3,  by  56  to  i,  that  a  relinquishment  of  the 
ground  taken  by  the  house  "would  necessarily  tend  to  destroy  the 
powers  and  privileges  granted  to  the  General  Court  in  and  by 
the  royal  charter."^  Moreover,  on  November  24  the  house  had  as- 
sured the  governor  "that  as  long  as  this  Assembly  retain  any  re- 
gard to  the  great  trust  and  confidence  our  electors  have  put  in  us, 
all  efforts  to  persuade  and  induce  us  to  forsake  their  true  interest 
and  bring  them  and  their  posterity  under  the  weight  and  burden 
of  such  innumerable  and  inconceivable  inconveniences  as  they 
firmly  believe  may  soon  be  their  lot  and  portion  should  the  House 
give  in  to  the  aforesaid  Instruction"  would  be  fruitless. 

Three  times  in  vain  did  the  house  appeal  home  for  the  with- 
drawal of  this  instruction,  which  the  governor  alleged  to  be  an 
insuperable  bar  to  his  passing  supply  in  the  form  desired  by 
the  house.  On  passing  the  supply  of  £6000  in  April,  1731,  in 
terms  which  were  in  accordance  with  the  instruction,  an  ad- 
dress to  the  king  was  formulated  by  the  house,  and  in  June 
another  address  was  sent  by  the  house  and  council  together,  pray- 
ing for  the  removal  of  this  bar.  But  the  privy  council  on  De- 
cember 23,  173 1,  advised  the  king  to  adhere  to  the  instruction. 
At  the  end  of  1732.  on  December  14,  the  houses  voted  concur- 
rently to  address  his  Majesty  again,  "and  in  case  the  address  have 
not  the  desired  success  that  a  memorial  be  laid  before  the  Hon. 
the  House  of  Commons  if  sitting,  praying  their  intercession  with 
his  Majesty  that  he  would  be  graciously  pleased  to  withdraw  the 
instruction."  This  appeal  to  the  commons  aroused  Belcher's  in- 
dignation. He  said  it  was  "without  precedent  among  the  planta- 
tions ;"  there  was  no  occasion  "for  treating  his  Majesty  so  inde- 


'  December  26,  1732. 

'  So  also  he  wrote  to  Walpole  January  1,  1733.     Belcher  Papers,  493. 

'  Palfrey,  IV.  543,  note. 


IN    PROVINCIAL    MASSACHUSETTS.  Ill 

cently  and  disrespectfully."  Considering  that  it  was  only  inter- 
cession that  was  desired  from  the  commons,  it  might  be  questioned 
whether  there  was  disrespect  in  the  form,  but  without  doubt  the 
intention  was  to  bring  political  pressure  to  bear  upon  the  ministry. 
In  any  case  it  was  fruitless ;  for  the  commons  manifested  their 
disapproval,  and  in  an  order  in  council  of  May  lo,  1733,  the  king 
signified  his  "high  displeasure"  at  these  repeated  applications, 
and  the  instruction  was  ratified  and  confirmed.^ 

The  plantations  committee  of  the  privy  council  obtained 
the  opinion  of  the  attorney-general  and  solicitor-general,  that 
the  instruction  was  "perfectly  agreeable"  to  the  charter ;  as  to  the 
issue  of  money,  "the  words  of  the  Charter  are  very  plain,"  that 
it  be  by  governor  and  council,  meaning  "according  to  such  gen- 
eral clauses  of  appropriation,  describing  the  nature  of  the  serv- 
ices for  which  it  was  given,  as  should  be  mentioned  in  such  acts 
but  not  to  restrain  the  Governor  and  Council  from  making  such 
a  distribution  upon  the  particular  articles  of  those  services  or 
from  passing  the  accounts  and  paying  the  persons  by  whom  such 
services  should  be  performed  in  such  manner  as  they  should 
think  fit  consistently  with  the  general  clauses  of  appropriation. 
But  such  distribution  of  accounts  and  payments  will  be  subject 
to  future  inquiries  to  be  made  in  a  regular  method  by  the  Assem- 
bly or  House  of  Representatives  as  to  the  application  of  the 
money  and  the  consistency  thereof  with  the  appropriating  clauses 
for  which  a  proper  reservation  is  made  by  the  instruction. "" 
The  committee  reported  that  the  persistence  of  the  assembly 
"evidently  shows  that  their  desire  is  to  assume  to  themselves  the 
executive  power  of  the  government  of  the  said  Province,  and 
has  a  direct  tendency  to  throw  off  their  dependence  upon  Great 
Britain,  which  is  so  necessary  to  be  maintained  even  for  their 
own  preservation,"  a  notable  insight  into  the  essential  character 
of  the  dispute. 

Another  check,  moreover,  was  received  from  the  agent  of 
the  province  in  London.  Wilks  had  written  on  October  23, 
1732,  that  he  had  been  having  conversation  with  several  distin- 
guished persons,  friendly  to  Massachusetts,  including  the  Lord 
President  of  the  Council,  and  that  they  all  thought  the  province 
in  the  wrong  on  this  matter.    It  was  his  advice  that  the  province 

'Palfrey,  IV,  545,  note. 
'  Acts  and  Resolves,  II.  702. 


112  CONSTITUTIONAL    CONFLICT 

address  the  king  for  relief  from  the  ill  consequences  of  such  a 
procedure  as  the  instruction  required,  rather  than  insist  too 
strongly  on  the  right.  He  seemed  to  fear  a  possible  untoward 
result  from  too  great  obstinacy.  "I  with  great  submission  ofifer 
my  thoughts  that  it  would  be  most  wise  and  prudent  for  the 
General  Court  to  settle  the  matter  without  its  being  brought  into 
a  dispute  with  the  Crown  on  this  side  than  afterwards  to  com- 
ply." Belcher  used  this  to  intimate  to  the  general  court  a  pos- 
sibility that  the  deplorable  undefended  state  of  the  province,  due 
to  the  lack  of  money  which  the  general  court  should  supply, 
might  lead  to  the  king's  "taking  the  necessary  care  for  support- 
ing his  forts  and  garrisons  as  well  as  every  other  part  of  his 
government."  In  other  words,  if  the  house  insisted  on  too  much, 
it  might  lose  every  part  of  its  control  over  the  executive.  As 
usual,  Massachusetts  stopped  just  short  of  the  danger  line. 

Now  that  all  hope  of  the  withdrawal  of  the  instruction  was 
gone,  the  house  must  choose  between  a  compliance  therewith 
and  a  further  continuance  of  an  intolerable  situation.  The  treas- 
ury had  now  been  empty  for  more  than  two  years,  and  the  debts 
of  the  province  amounted  to  tens  of  thousands  of  pounds.  The 
province  could  pay  and  wished  to  pay  its  debts,  and  repeatedly 
passed  bills  of  supply  sufficient  therefor,  but  the  governor  was 
unwilling  to  allow  it  to  pay  its  debts  except  in  this  form  obnox- 
ious to  the  house.  It  became  evident  that  the  governor  would 
not  yield,  and  it  was  not  the  governor  but  the  undefended  prov- 
ince that  was  suffering  from  a  continuance  of  the  quarrel.  The 
result  was  the  passage  at  last,  in  October,  1733,  of  an  act  grant- 
ing a  supply  of  £76,500,  from  which  was  omitted  the  long  pro- 
tested clause  that  would  have  restricted  its  issue  to  warrants 
passed  by  the  house.^  It  was  accompanied  by  a  long  message, 
in  which  the  house  protested  against  the  reception  of  this  action 
as  a  precedent  in  prejudice  of  their  right.  Since  there  had  been 
no  general  supply  since  September,  1730^  (over  three  years), 
"considering  that  great  distress  and  difficulty  are  like  to  rise  from 
an  empty  treasury,"  the  representatives,  "out  of  their  great  zeal 
for  his  Majesty's  honor  and  service  and  their  earnest  desire  to 
preserve  the  public  peace  and  quiet  of  the  government,  to  dis- 
charge the  debts  and  to  render  to  everyone  their  just  due,  have 

^  Act  1733-4,  c.  7. 
"  Act  1730,  c.  3. 


IN    PROVINCIAL    MASSACHUSETTS.  II3 

judged  it  more  convenient  to  suspend  the  exercise  of  their  right 
of  examining  accounts  before  payment  in  the  present  supply." 
They  declare  their  continued  behef,  nevertheless,  "that  the  royal 
charter  doth  empower  the  General  Court  to  reserve  to  themselves 
[in  the  act  for  supply]  the  examination  of  accounts  and  in  it 
to  direct  that  money  be  paid  out  of  the  Treasury  for  the  dis- 
charge of  such  accounts  only  of  service  performed  as  are  allowed 
by  the  whole  court,"  "leaving  the  exercise  thereof  to  be  assumed 
by  any  future  Assembly." 

The  house  was  defeated,  but  not  routed.  The  concessions 
yielded  to  them  in  the  instruction  were  realized  to  the  full;  and 
broadly  construed.  The  right  of  the  house  was  retained,  to  audit 
the  treasurer's  accounts  after  payment  and  to  complain  of  griev- 
ances in  the  warrants  passed  by  the  council ;  and  considering 
that  the  treasurer  was  elected  by  joint  ballot,  in  which  the  house 
was  predominant,  here  was  a  substantial  guaranty  against  op- 
pression. It  was  true,  as  the  house  complained,  that  the  passage 
of  accounts  by  the  council  would  require  only  four  favorable 
votes,  a  mere  majority  of  a  quorum  of  seven,  whom  the  gov- 
ernor might  choose  out  of  the  twenty-eight  members.  But 
experience  gave  no  reason  to  fear  corruption,  or  application  of 
money  contrary  to  the  laws,  which  were  still  the  limit  of  the 
council's  discretion ;  and  there  was  always  the  political  control 
annually  exercised  in  the  election  by  the  general  court,  so  that 
the  governor's  supposed  four  corrupt  appropriators  of  the  rev- 
enue couTd  easily  be  dropped  out  by  the  house  at  the  next  election. 

But  far  more  significant  was  the  use  now  made  (and  hence- 
forth in  all  supply  acts)  of  the  clause  in  the  instruction  which  al- 
lowed "one  or  more  clauses  of  appropriation."  For  example,  the 
act  of  1733^  granted  to  the  king  £76,500  "for  the  necessary  defence 
and  support  of  this  government,  and  for  the  protection  and  pres- 
ervation of  the  inhabitants  thereof/'  in  thirteen  items,  whose 
funds  were  non-transferable,  and  which  were  remarkable  for 
their  extremely  detailed  provision,  adopted  apparently  to  exclude 
expansion  at  the  council's  discretion,  viz.  (i)  £8,162:  12s.  for 
wages  and  support  of  the  Castle  garrison"  "and  no  other  use 
whatsoever,"  the  number  of  officers  of  each  rank  and  of  soldiers 
being  specified  ;  seven  other  items  of  the  same  sort,  for  the  "coun- 


'  Acts  and  Resolves,  II.  690. 

8 


114  CONSTITUTIONAL   CONFLICT 

try  sloop"  and  six  enumerated  forts  ;  (9)  £26,589:  6s.  for  "grants 
made  by  this  court,  and  stipends  established  by  law,  and  nothhig 
else;"  (10)  £15,063 :4s.  for  debts  of  the  province  "to  persons 
who  have  served  them  by  order  of  this  court,  in  such  matters 
and  things  where  there  is  no  establishment ;  and  also  for  paper, 
printing  and  writing  for  this  court,  the  expenses  of  committees, 
public  entertainments,  the  entertainment  of  Indians  and  pres- 
ents made  them,"  the  governor's  visit  to  Saco,  Province  House 
repairs,  indents,  surgeons'  accounts,  supplying  the  forts  with 
wood,  Court  House  repairs,  expresses,  expense  of  a  council 
committee  to  Rhode  Island,  repairing  the  Light  House  boat, 
treasurer's  disbursements  for  forts,  truck-houses,  and  the  sloop 
in  the  country's  service,  and  surveying  new  towns ;  ( 1 1 )  £6500 
for  wages  of  the  representatives;  (12)  £2500  for  wages  of  coun- 
cillors; and  (13)  £1000  for  "contingent  and  unforeseen  charges 
that  demand  prompt  payment."  That  is  to  say,  as  a  result  of 
this  conflict,  the  house  had  lost  its  usurped  right  to  audit  muster 
rolls,  which  was  little  more  than  a  form ;  but  on  the  other  hand 
it  had  allowed  the  council  to  issue  warrants  only  within  precise, 
narrow  limits  for  detailed  purposes,  thus  turning  into  a  mere  form 
the  warrant  power  derived  to  the  council  by  the  charter. 

Such  was  the  system  of  financial  control  in  the  province,  a 
wide  departure  from  the  evident  intention  of  the  charter,  but  the 
natural  result  of  a  half-century  of  competition  between  two 
bodies,  of  which  one  must  remain  on  the  defensive,  the  other 
might  use  its  great  original  power  to  make  an  active  campaign 
and  win  additional  powers.  It  was  the  house,  then,  that  held 
the  purse  of  the  province,  raising  the  public  money  by  taxation- 
laws  matured  in  its  own  wisdom,  subject  to  the  concurrence 
of  council  and  governor ;  spending  the  public  money  for  purposes 
which  were  determined  in  full  outline  by  itself,  and  in  detail  by 
a  body  politically  dependent  upon  it ;  finally,  auditing  the  ac- 
counts of  the  expenditure,  thereby  completing  a  process  in  every 
step  of  which  the  people's  money  was  virtually  under  the  control 
of  the  people's  representatives. 


CHAPTER  VII.     CONTROL  OF  MILITARY  AND  DIPLO- 
MATIC AFFAIRS. 

One  of  the  most  vital  functions  of  colony  government  was 
defence,  and  the  dispute  between  royal  and  popular  sovereignty, 
or  at  least  the  struggle  for  practical  control,  extended  not  un- 
naturally to  this  important  field.  Colonial  experience  had  accus- 
tomed Massachusetts  to  control  of  all  military  matters  directly  or 
indirectly  by  the  popular  will  ;^  including  regulation  by  law  of 
the  general  court,  appointment  of  officers  by  the  court  of  election 
or  the  general  court,  and  supreme  command  by  the  popularly 
elected  governor  and  assistants.  Tlie  normal  provincial  govern- 
ment on  the  other  hand,  quite  as  much  as  a  matter  of  course  gave 
this  control  to  the  governor,  the  agent  of  the  crown,  and 
his  appointees."  In  the  general  compromise  between  the  two 
systems,  embodied  in  the  second  charter,  military  functions  were 
divided  between  the  two  powers.  The  governor  as  commander 
in  chief  was  the  military  head  of  the  province ;  but  the  power 
of  the  purse,  and  the  right  to  make  laws  (including  militia  and 
military  laws)  belonged  to  the  assembly,  and  these  powers  tended 
to  expand  till  they  involved  in  a  considerable  degree  the  power  of 
the  sword,  so  dependent  on  the  power  of  the  purse  in  days  when 
the  support  of  soldiers  and  the  building  of  fortifications  must  be 
financed  largely  by  direct  taxes,  whose  burden  was  very  keenly 
felt. 

As  in  the  colony  days,  the  system  of  defence  was  essentially 
a  militia  system  depending  on  the  assize  of  arms,  with  universal 
obligation  to  service,  rather  than  a  military  system  depending  on 
a  standing  army;  and  the  approximation  to  the  latter  which  was 
necessitated  by  the  French  and  Indian  wars  was  regarded  as  tem- 
porary, resting  as  at  home  on  annual  acts,  that  the  subjection  of 
the  military  to  the  civil  power  might  be  ensured.  Thus  the  matter 
naturally  became  one  phase  of  the  tendency  to  subordination  of 
the  executive  to  the  legislative  power. 


'  Osgood,  The  American  Colonies,  I.  521. 
'Ibid.  II.  378. 

(115) 


Il6  CONSTITUTIONAL   CONFLICT 

By  the  charter  the  governor  received  "full  power  ...  to 
train  .  .  .  and  govern  the  militia  .  .  .  and  for  special 
defence  ...  to  put  in  warlike  posture  the  inhabitants  . 
to  lead  them  ...  to  encounter  .  .  .  destroy  and  conquer 
.  .  .  all  .  .  .  such  .  .  .  persons  as  .  .  .  attempt 
.  the  destruction  ...  or  annoyance  of  our  said  Prov- 
ince .  .  .  to  .  .  .  exercise  the  law  martial  in  time  of 
actual  war  and  also  ...  to  erect  forts  .  .  .  and  the 
same  to  furnish  with  all  necessary  ammunition,  provisions  and 
stores  of  war."^  Yet  the  whole  militia  system  rested  on  a  law  of 
the  province,  passed  by  the  assembly  and  assented  to  by  the  gov- 
ernor in  1693,  which  went  into  great  detail  regarding  the  liability 
to  service,  the  arms  required,  the  view  of  arms,  the  frequency  of 
trainings,  the  manner  of  appointment  of  officers, —  all  practically 
a  continuation  of  the  colony  system.-  This  was  supplemented  by 
a  law  of  1697,^  empowering  officers  to  pursue  the  enemy,  provid- 
ing for  calling  their  regiments  together  on  alarm,  enjoining  obedi- 
ence to  superiors.  The  principal  innovations  of  the  provincial 
system  were  that  appointment  of  commission  officers  was  to  be 
no  longer  by  the  general  court,  nor  even  by  the  governor  and 
council,  but  by  the  governor  alone ;  and  that  while  the  command 
of  the  forces  was  still  in  the  governor,  that  officer  was  now  a 
royal,  not  a  colonial,  functionary,  control  thus  being  exercised 
from  above,  no  longer  from  below. 

The  embodiment  and  organization  of  the  military  forces  on 
a  war  footing  was  a  different  matter.  The  supreme  command 
was  in  the  governor  by  virtue  of  the  charter,  and  the  gov- 
ernor in  this  respect  might  be  viewed  from  above  as  a  part 
of  the  imperial  military  system  conmianding  the  English 
forces  of  Massachusetts,  as  well  as  from  below,  as  the  military 
head  of  the  colony  organized  for  self-defence.  Ideally,  for  the  sake 
of  the  military  dependence  of  the  colonies,  the  former  aspect 
should  have  been  emphasized,  the  governor  defending  the  colony 
by  means  of  imperial  troops  paid  and  directed  from  home,  to  whose 
support  the  colony  would  contribute  proportionately,  but  indirectly 
through  the  British  treasury.  Bellomont  saw  this  point,  and  was 
in  theory  opposed  to  the  colony's  defending  itself,  seeing  that  the 

^  Acts  and  Resolves,  I.  18. 
'  Act  1693-4,  c.  3. 
'Act  1697,  c.  1. 


IN    PROVINCIAL    MASSACHUSETTS.  II/ 

independent  spirit  of  colonial  self-sufficiency  would  be  fostered  by 
the  consciousness  that  its  defence  depended  upon  itself  without  the 
help  of  the  home  government.  But  whatever  the  imperial  ideal, 
the  actual  fact  was  that  the  colony  defended  itself,  raised  its  own 
troops,  regulated  them  by  its  own  laws,  paid  them  wages  and 
supported  them,  and  only  incidentally  used  the  governor  as  com- 
m.ander  in  chief. 

Not  only  the  command  of  the  troops  but  also  the  appointment 
of  military  officers,  was  in  the  hands  of  the  governor,  and  this 
lacUjr  act  was  one  of  the  very  few  which  he  might  perform  with- 
out the  advice  and  consent  of  the  council.  It  was  his  peculiar 
function,  and  the  house  made  no  encroachment  upon  it,  except  in 
the  misunderstanding  under  Shute  and  Dummer,  when  on  several 
occasions  interference  by  the  house  took  the  form  of  desiring 
the  governor  to  remove  an  officer  for  alleged  dereliction  of  duty. 

Forces  were  organized  in  accordance  with  acts  of  the  gen- 
eral court,  and  the  means  used  to  keep  control  of  the  army 
and  ensure  subordination  of  the  military  to  the  civil  power  was 
the  familiar  English  one  of  annual  acts.  The  establishment  of 
military  discipline  and  the  authorization  of  courts  martial  for  en- 
forcing it,  depended  on  acts  passed  with  a  time  limitation,  usually 
one  year,  which  were  omitted  in  time  of  peace.  The  first  one 
was  passed  in  1700;^  hence  it  is  to  be  inferred  that  until  that  data 
this  had  been  a  power  uncontrolled  in  the  hands  of  the  governor 
and  assistants,  who  were  still  regarded  as  a  popular  body.  A  pre- 
cise definition  of  crimes  in  this  jurisdiction  was  not  made  until 
1704,-  when  penalties  v;ere  assigned  by  an  act  of  the  court, 
which  left  a  good  deal  of  discretion  to  the  commission  officers, 
but  safeguarded  the  rights  of  the  individual  before  the  court 
martial. 

There  was  a  considerable  body  of  legislation  of  much  the 
samie  nature,  upon  which  the  efficient  prosecution  of  a  war  de- 
pended, which  was  at  first  passed  in  tlie  form  of  annual  acts,  some- 
times even  for  a  shorter  period.  It  was  omitted  in  time  of  peace. ^ 
These  acts  (i)  offered  bounties  for  Indian  scalps  or  captives;  (2) 


'Act   1699-0,   c.  21. 

'Act  1704-5,  c.  7. 

^  In  Dummer's  time  the  legislation  was  passed  to  continue  in  force 
during  the  war,  this  laxness  being  made  endurable  by  the  control  the  house 
was  then  enjoying  over  the  passage  of  muster  rolls. 


Il8  CONSTITUTIONAL    CONFLICT 

forbade  desertion  of  the  frontiers  by  the  inhabitants  of  the  towns, 
except  under  Hcense  ;^  (3)  permitted  the  governor  and  council  to 
transport  the  mihtia  out  of  the  province  for  the  defence  of  neigh- 
boring colonies;-  (forbade  arrest  of  bona  fide  soldiers  for  debt  ;^ 
(5)  provided  for  levying  soldiers,  described  the  method  of  im- 
pressment, time  during  which  pay  should  run,  etc.  f  (6)  prescribed 
the  procedure  in  issuing  supplies  and  pay.^  By  making  these 
acts  temporary,  and  of  no  force  in  time  of  peace,  the  practi- 
cal result  was  secured  that  the  power  of  making  peace  and  war 
was  in  the  general  court,  since  no  war  could  be  carried  on  (be- 
yond the  mere  rendezvous  on  sudden  alarm)  without  these  acts, 
and  for  their  passage  a  general  court  was  necessary ;  and  by  means 
hereafter  to  be  described  the  passage  of  these  acts  might  be  made 
the  price  paid  for  yielding  to  the  general  court  a  considerable 
measure  of  control  over  the  troops  thus  authorized. 

Almost  from  the  very  first,  the  pay  of  officers  and  soldiers 
was  fixed  by  the  general  court.  Until  1696,  it  must  have  been 
by  the  governor  and  council ;  for  there  is  no  mention  of  the  matter 
among  the  acts  and  resolves  of  the  court.  Presumably  the  old 
scale  of  wages  customary  in  the  colony  was  continued  without 
question,  the  governor  and  council  merely  supervising  the  auto- 
matic application  of  that  law  to  the  muster  rolls  of  garrisons  and 
companies  of  soldiers.  But  with  the  change  in  the  value  of  money 
consequent  upon  the  issue  of  credit  bills  in  1690,  and  with  the 
more  frequent  calls  for  soldiers  in  King  William's  wars  and  the 
additional  inducements  required  to  be  offered  to  soldiers  enlist- 
ing, some  change  soon  became  necessary,  and  considering  the 
jealous  regard  of  the  house  for  the  appropriating  function  it  was 
to  be  expected  that  so  large  an  item  as  soldiers'  wages  and  sub- 
sistence would  be  brought  under  the  control  of  the  body  claim- 
ing the  right  to  dispose  of  the  people's  money.  In  1694  a  bill 
establishing  a  detailed  schedule  of  pay  for  privates  and  officers, 
and  rates  of  subsistence,  was  passed  by  the  house  and  concurred 
in  by  the  council.  The  bill  failed  to  pass,  however,  owing  probably 
to  the  opposition  of  the  lieutenant-governor,  in  defence  of  what 


'E.  g..  Act  1694,  c.  25. 
'E.  g.,  Act  1694,  c.  11. 
'E.  g.,  Act  1704-5,  c.  10. 
'E.  g..  Act  1693,  c.  9. 
"  E.  g.,  Act  1703-4,  c.  7. 


IN    PROVINCIAL    MASSACHUSETTS.  II9 

he  regarded  as  his  mihtary  prerogatives.^  Substantially  the  same 
bill  came  up  in  1696  and  was  passed,  the  occasion  having  been  the 
dispute  on  the  pay  of  Captain  Church's  men,  who,  relying  on  the 
promise  of  the  council,  expected  more  pay  than  the  house  was 
willing  to  give.^  From  now  on  the  establishment  of  wages  was  a 
recognized  function  of  the  general  court.  The  resolve  of  1696 
was  to  continue  in  force  only  twelve  months,  but  none  was  passed 
at  its  expiration,  and  it  was  presumably  followed  as  the  "customary 
wages"  until  further  positive  action  should  be  taken.  Dudley  seems 
to  have  regarded  this,  as  he  did  all  action  of  the  house  in  military 
affairs,  as  mere  advice ;  and  while  he  might  or  might  not  follow 
their  advice  in  other  matters,  he  was  careful  to  follow  it  in  such 
an  affair,  where  by  refusing  to  pass  supplies  they  could  thwart 
him.  He  would  be  especially  ready  to  follow  their  advice  here, 
as  the  soldiers'  pay  was  a  thing  which  it  would  be  the  interest 
of  the  house  to  keep  up  to  the  highest  point  demanded  by  efficiency 
in  enlistment.  So  in  1703-4,  when  the  house  passed  a  new  estab- 
lishment,^ though  there  is  no  evidence  that  the  council  and  gov- 
ernor took  final  legislative  action  upon  it  to  make  it  a  resolve, 
yet  it  was  followed  as  authoritative  in  the  passing  of  muster  rolls. 

As  a  matter  of  course,  bounties  and  special  gratuities  to  sol- 
diers w'ere  originated  by  the  house,  being  in  addition  to  the  ''ac- 
customed" or  legal  wages. 

The  passage  of  muster  rolls  (1721-1730)  was  a  species  of 
double  control  exercised  by  the  house  over  the  pay  of  soldiers, 
ostensibly  in  order  to  assure  itself  that  the  pay  was  delivered  ac- 
cording to  law ;  actually  in  order  to  give  the  house  an  opportunity 
to  condemn  a  policy  already  carried  out,  that  the  governor  might 
in  future  avoid  policies  displeasing  to  the  house.     (Chapter  VI.) 

Direction  of  military  affairs  is  naturally  an  executive  func- 
tion. In  the  colonial  period  the  movement  of  troops  and  the 
assignment  of  garrisons  had  been  the  function  of  the  governor 
and  assistants,  efificiency  and  definiteness  of  responsibility  being 
thus  gained  without  sacrifice  of  liberty  or  of  civil  supremacy 
over  the  military ;  for  the  assistants  were  primarily  a  civil  body, 
and  the  councils  of  war  which  assisted  them  on  occasion  v/ere 
elected  by  the  general  court,  which  defined  their  functions  and 

'  Acts  and  Resolves,  VII.  534. 
*  Resolve  1696-7,  c.  56. 
'Resolve  1703-4,  c.  76. 


I20  CONSTITUTIONAL    CONFLICT 

absolutely  controlled  them.  The  language  of  the  provincial  char- 
ter was  plainly  in  favor  of  the  royal  governor  as  the  director 
of  military  affairs.  He  it  was  who  should  "assemble  in  martial 
array  and  put  in  warlike  posture  the  inhabitants,  lead  and  con- 
duct them  to  encounter,  expulse,  repel,  resist,  and  pursue  by  force 
qf  arms"  persons  enterprising  the  destruction  or  annoyance  of 
the  province.  In  words  the  house  acknowledged  this;  neverthe- 
less, in  actual  practice  the  first  forty  years  of  the  province  was 
a  period  of  continual  encroachment  by  the  house  upon  the 
governor's  prerogative  —  a  prolonged  effort,  by  the  use  of  the 
power  of  the  purse,  to  grasp  that  of  the  sword.  It  will  be  con- 
venient to  consider  first  the  forms  of  this  increasing  participation 
of  the  house  in  military  affairs,  secondly  the  means  by  which  this 
encroachment  was  made,  and  thirdly  the  situation  in  Shute's  ad- 
ministration, at  the  climax  of  encroachment. 

From  the  very  earliest  times  the  governor  was  accustomed 
to  receive  the  advice  of  the  house  on  these  matters.  Not  a  small 
number  of  the  members  were  militia  officers,  and  the  localized 
representative  system  brought  men  together,  with  intimate  knowl- 
edge of  the  military  situation,  from  all  parts  of  the  province, 
even  from  the  frontiers ;  so  that  its  advice  was  peculiarly  valuable 
for  the  common  cause  of  defence.  Not  unnaturally,  then,  the 
custom  grew  up  under  Phips  and  Stoughton,  both  of  whom  had 
been  trained  under  the  old  system,  of  regarding  representatives 
and  assistants  together  as  one  grand  council  of  war,  to  which 
should  be  referred  intelligence  from  the  seat  of  war  and  cor- 
respondence with  the  other  colonies,  and  from  which  should  be 
expected  the  maturing  of  plans  based  on  the  local  knowledge  at 
its  disposal.  But  the  line  was  difficult  to  draw  between  this  valued 
advice,  and  actual  command,  or  the  authoritative  responsible  di- 
rection, which  undoubtedly  belonged  to  the  governor  alone.  The 
governor  at  all  times  regarded  the  expression  of  the  will  of  the 
house  upon  military  matters  as  mere  advice  which  he  might  or 
might  not  follow.  Dudley  not  infrequently  told  the  house  as 
much,  but  so  long  as  he  actually  followed  the  advice,  he  was 
giving  strength  to  a  line  of  precedents  which  it  became  more 
and  more  difficult  to  break.  Gradually,  in  the  first  two  decades 
of  the  provincial  period,  the  house  got  into  the  habit  of  (i) 
assigning  periodically  the  numbers  of  soldiers  who  should  be 
posted   at   the   various   garrisons   and    forts;    (2)    detailing   the 


IN    PROVINCIAL    MASSACHUSETTS.  121 

plans  of  campaign,  determining  to  what  places  bodies  of  troops 
should  be  sent,  and  the  number  of  men  of  whom  they  should  be 
composed.  In  1723,  in  fact,  the  house  made  an  attempt  to  have  a 
joint  committee  appointed,  to  sit  during  the  recess  and  conduct  the 
war.  Nacurally  the  council  non-concurred,  and  that  was  the  end 
of  the  effort.  But  the  attempt  to  assign  troops  to  garrisons  and  ex- 
peditions could  be  more  easily  justified  from  the  superior  local 
knowledge  of  the  representatives,  and  at  least  on  one  occasion, 
September  8,  1721,  Governor  Shute  of  his  own  motion  invited  it. 
Such  dispositions  were  made  nominally  by  the  governor,  the 
liouse  "desiring  his  Excellency  to  give  orders"  thus  and  so.  But 
for  all  practical  purposes  the  will  of  the  house  was  law  to  the 
governor. 

The  control  of  the  purse  was  the  means  used  by  the  house 
to  secure  this  power.  Expeditions  might  be  determined  upon  by 
the  executive,  the  number  of  soldiers  needed  at  the  garrisons 
might  be  decided  by  his  discretion;  but  the  expedition  could  not 
be  undertaken,  nor  the  garrison  maintained,  without  provision  for 
pay  and  subsistence.  The  right  to  vote  pay  and  subsistence  was 
the  weapon  of  the  house,  and  it  was  used  with  its  whole  weight. 
If  the  determination  of  the  governor  as  to  military  policy  was 
contrary  to  that  of  the  house,  pay  and  subsistence  could  be  re- 
fused and  the  governor  would  be  powerless.  On  emergencies 
the  governor  would  call  out  the  militia  to  answer  an  alarm,  and 
then  expect  the  assembly,  by  whose  tacit  consent  he  had  done  so, 
to  support  the  soldiers  ;  but  no  active  exertion  of  force  such  as 
an  expedition  against  the  enemy's  position,  and  no  permanent 
military  expenditures  such  as  those  entailed  by  the  maintenance 
of  garrisons,  could  be  made  contrary  to  the  will  of  the  house.  It 
is  true,  the  actual  conduct  of  military  affairs  was  largely  by  the 
governor,  because,  as  being  a  single  functionary,  in  whom 
responsibility  could  be  concentrated,  he  was  the  most  suitable 
agent  of  the  house,  according  to  the  familiar  necessity  in  military 
operations ;  but  it  was  as  agent  of  the  house  that  he  acted,  not 
of  his  own  right  and  prerogative,  and  in  the  last  resort  decisions 
had  to  be  made  by  the  house,  for  the  reasons  already  stated. 

Even  in  his  action  as  agent  of  the  house  he  was  limited 
in  ways  that  must  have  been  vexatious.  For  example,  to  limit 
the  size  of  parties  he  might  send  out,  it  was  sometimes  provided 
in  the  resolve  allowing  pay  that  the  pay  of  no  officer  above  the 


122  CONSTITUTIONAL    CONFLICT 

rank  of  sergeant  or  captain,  should  be  allowed  by  authority  of  this 
resolve.^ 

The  same  principle  applied  in  the  control  of  defensive  forces 
in  garrison.  If  the  house  was  of  opinion  that  a  certain  post 
maintained  by  the  governor  was  unnecessary  or  not  of  sufficient 
utility,  it  would  declare  its  pleasure  that  the  pay  of  that  garrison 
be  stopped.  The  matter  came  to  an  issue  under  Dummer  in 
1723,  immediately  after  Shute's  departure.  He  reproved  the 
house  for  its  attempt  to  assume  the  military  power  of  the  exec- 
utive in  presuming  to  "draw  off  the  forces;"  whereupon  the  house 
answered  him  that  it  meant  not  to  "draw  off  the  forces,"  which 
was  the  function  of  the  commander  in  chief,  but  only  to  "draw  off 
the  pay  and  subsistence  of  the  forces,"  a  difference  which  de- 
ceived neither  the  house  nor  the  lieutenant-governor,  but  which 
illustrates  the  friction  necessarily  resulting  from  the  governor's 
nominal  exercise  of  a  military  power  that  was  practically  con- 
trolled by  the  house. 

Out  of  the  practice  of  examining  intelligence  from  the 
frontier,  it  progressed  to  desiring  to  examine  the  journals  of  the 
commanders  of  expeditions,  and  later,  after  continued  ill-success 
in  this  encroachment  in  Shute's  time,  to  requiring  them  to  keep 
separate  journals  for  the  perusal  of  the  house,  besides  their 
usual  reports  to  the  governor  as  military  superior.^  The  gov- 
ernor's instructions  to  officers  it  attempted  to  bring  under  its 
own  examination  as  well,  that  it  might  make  sure  of  his  com- 
pliance with  its  recommendations,  but  here  it  gained  little  success. 
The  power  of  the  purse  was  difficult  to  apply  for  such  a  purpose ; 
for  it  was  obviously  unjust  to  stop  the  pay  of  officers  and  men 
after  they  had  performed  service,  merely  for  the  reason  that  the 
governor's  instructions  to  them  were  contrary  to  the  desire  of 
the  house,  and  it  was  difficult  to  compel  the  governor  to  divulge 
his  correspondence  with  officers.  In  case  the  house  suspected 
irregularities  in  the  conduct  of  officers  it  might  (as  it  did  in  the 
case  of  Woodsides  in  1727,  and  others)  stop  their  pay  for  some 
time,  while  it  conducted  its  own  investigation.  Such  a  procedure 
must  have  weakened  discipline,  since  officers  and  men  would  see 
that  obedience  to  military  superiors  was  not  the  most  sure  method 

'  E.  g.,  September  20,  1723. 
'^  Court  Records,  XL  479. 
"Act  1722-3,  c.  12,  §  11. 


IN    PROVINCIAL    MASSACHUSETTS.  I23, 

of  advancing  their  interest ;  and  the  entrance  of  poHtics  into  the 
militia  had  its  natural  result  in  the  insubordination  common  and 
evident  in  the  later  intercolonial  wars.  The  same  would  be  the 
result  of  such  experiences  as  that  of  Major  Moodey  in  1722,  who 
was  apparently  persecuted  by  the  house  because  of  the  personal 
jealousies  of  the  members.^ 

In  1722  a  keen  dispute^  arose  over  the  house  sending  a  com- 
mittee to  see  the  militia  of  the  eastern  counties  paraded.  It  could 
only  be  done  by  the  governor's  order,  which  in  this  case  was 
apparently  given  without  full  understanding  of  the  purpose  of 
the  house  (viz.,  to  investigate  the  causes  of  the  desertions  then 
so  prevalent, —  probably  a  cover  for  the  attempt  to  discover  the 
reason  why  the  soldiers  were  dissatisfied  with  their  officers). 
Such  irregular  investigations  also  must  have  weakened  the  ordin- 
ary methods  of  discipline  and  the  responsibility  of  military  su- 
periors. 

The  stores  of  war  would  be  expected  to  be  subject  to  the 
control  of  the  military  head  of  the  province ;  and  yet  the  house 
more  and  more  participated  in  this  function.  As  it  was  an  "affair 
of  money,"  since  the  house  had  to  buy  the  stores,  it  proceeded  to 
dispose  of  them,  either  through  committees  or  by  resolves  directly 
commanding  its  officers,  the  treasurer,  or  the  war  commissioners, 
to  send  the  stores  in  such  and  such  quantities  to  such  and  such 
places. 

A  question  long  argued  between  the  governor  and  house 
was  the  building  of  fortifications,  but  it  was  rather  the  expedi- 
ency of  particular  fortifications  that  they  were  arguing  than  the 
right  to  control.  By  charter,  the  governor  was  given  the  power 
to  erect  .fortifications.  But  the  costliness  of  such  public  works 
meant  that  they  were  impossible  without  the  willing  co-operation 
of  the  appropriating  power,  and  the  result  was  the  absolute  con- 
trol of  this  branch  of  military  policy  by  the  house.  It  was  the 
assembly,  which,  on  the  advice  of  the  governor,  determined  where 
and  Vv'hen  forts  should  be  built  and  contributions  made  to  assist 
towns  in  their  own  defence ;  also  in  some  degree,  how  the  money 
granted  should  be  spent.  Thus  we  find  the  general  court  devoting 
much  time  and  attention  to  the  reconstruction  and  repeated  re- 
pair of  the  Castle  in  Boston  harbor,  building  forts   from  time 

'Court  Records,   XI.  397,   ff. 
^Hutchinson,   II.  253,  258,  259. 


124  CONSTITUTIONAL    CONFLICT 

to  time  on  the  expanding  frontier,  refusing  the  insistent  demand 
of  Dudley  under  instruction  from  the  home  government  that  Pe- 
maquid  Fort  he  rebuilt  and  maintained,  but  later  under  Belcher 
repairing  and  maintaining  it,  when  the  growth  of  population  in 
that  direction  had  made  it  expedient  in  the  eyes  of  the  court. 

The  climax  of  the  encroachment  by  the  house  in  military 
affairs  was  reached  under  Shute  in  the  early  twenties.  On  account 
of  his  inefficiency  as  compared  with  Dudley  the  house  was  led  for 
the  sake  of  the  defence  of  the  province  to  take  a  more  active  part, 
and  it  then  made  use  of  the  forms  of  interference  above  described. 
Shute  went  home  in  disgust,  January  i,  1723,  and  laid  his  case 
before  the  king  on  August  22.  A  considerable  portion  of  his 
memorial  was  devoted  to  other  matters,  as  the  invasion  of  the 
king's  forest  rights,  the  speakership  and  adjournment  controver- 
sies ;  but  his  five  complaints  against  military  encroachments  by  the 
house  are  worth  glancing  at  here  for  the  light  they  throw  upon  the 
situation  as  it  was  when  he  left  it.    They  were  as  follows : 

1.  Voting  a  committee  June  13,  1722,  to  take  account  of 
stores  at  the  Castle,  without  the  permission  of  the  governor. 

2.  Ordering  the  treasurer  to  pay  no  more  subsistence 
money  to  the  Winter  Harbor  garrison,  but  to  send  the  stores  which 
were  there  to  Boston.  Later,  Shute  remarks,  the  house  ordered 
the  place  re-enforced  on  petition  of  Marblehead  that  it  was  nec- 
essary for  defence,  showing  that  his  judgment  had  been  correct. 
The  house,  he  says,  did  not  like  the  commander. 

3.  Voting  that  Major  Moodey  be  suspended,  and  refusing 
his  pay,  requiring  him  to  attend  the  court  and  ansv/er  complaints 
(to  the  court)  of  allowing  drunkenness  and  refusing  aid  to 
inhabitants,  an  accusation  which  Shute  asserts  (on  the  word  of 
the  officers)  to  be  frivolous,  made  because  Cooke  and  his  party 
hated  Moodey.  He  adds  that  the  refusal  of  pay  by  Uie  house  is 
of  no  force,  being  non-concurred  by  the  council. 

4.  Mustering  the  militia  before  a  committee  of  their  own, 
November  17,  1722,  to  inquire  about  the  causes  of  desertion.  In 
violation  of  his  order  that  the  report  be  made  to  him  as  Captain- 
general,  it  was  made  to  the  house. 

5.  Disposing  of  the  forces,  e.  g.  a  resolve  November  20, 
1722,  continuing  in  service  only  40  of  the  108  men  in  Hampshire 
County,  though  "His  Excellency"  was  to  be  "desired  to  express 
his  orders  accordingly." 


IN    PROVINCIAL    MASSACHUSETTS.  I25 

By  this  memorial  the  whole  business  was  brought  to  light 
before  the  English  colonial  authorities.  The  house  sent  an  agency 
of  its  own  (council  non-concurring),  and,  ignoring  the  charter 
power,  made  its  defence  on  the  broad  ground  that  Shute  was  not 
conducting  the  defence  according  to  its  will,  that  he  had  kept  the 
house  in  a  long  vacation  during  the  war,  which  he  then  conducted 
as  he  liked,  the  house  finding  afterward  that  the  expedition  they 
planned  and  provided  for  had  not  been  undertaken. 

Shute  returned  to  the  attack  with  a  second  memorial,  March 
5,  1724,  complaining  of  the  house  for  prescribing  the  rules  which 
it  was  for  the  council  to  give,  paying  no  forces  without  seeing 
by  the  muster  rolls  that  their  orders  were  complied  with,  extend- 
ing their  encroachments  to  the  care  of  the  Castle,  assuming  in 
January,  1723,  to  draw  off  the  militia  from  the  west,  for  which 
they  had  been  reprimanded  by  the  lieutenant-governor. 

So  nuiiierous  were  the  complaints  against  Massachusetts  at 
this  time,  so  great  seemed  the  danger  to  their  charter  (it  was 
at  this  time  that  the  Explanatory  Charter  was  granted,  settling 
the  speakership  and  adjournment  controversies),  so  uniform  were 
the  disapproving  views  of  the  conduct  of  Massachusetts  which 
were  held  by  the  privy  council,  that  upon  this  matter  the  agents 
deemed  it  wise  to  bend  to  the  storm,  since  it  here  involved  no  prac- 
tical loss  of  power,  but  only  a  reduction  of  the  extra-legal  preten- 
sions of  the  house.  The  agents  replied  that  the  house  "had  never 
pretended  to  subject  the  militia  of  the  Province  to  their  orders, 
knowing  that  power  to  be  in  the  Commander  in  Chief;"  muster 
rolls  are  brought  to  set  forth  that  the  officers  and  soldiers  have  done 
their  duty  according  to  the  laws  passed  and  approved  in  England, 
not  to  "discover  whether  the  orders  [of  the  house]  are  complied 
with."  This  was  about  as  ingenuous  as  the  plea  of  the  house  to 
the  lieutenant-governor  that  it  only  meant  to  "draw  off  pay  and 
subsistence ;"  but  it  was  sufficient.  The  privy  council  supported 
Shute,  declaring  that  he  had  "acted  with  great  zeal  and  fidelity," 
and  charged  the  agents  to  stop  the  encroachments  of  the  house 
on  the  employment  of  troops.  But  no  measures  were  taken  to 
stop  that  encroachment,  and  in  the  ways  and  for  the  reasons 
above  described  the  house  continued  to  use  its  control  of  the 
purse  to  secure  practically  complete  control  of  the  sword  as  well. 
This  system,  which  we  have  seen  develop  in  the  early  part  of 
the  provincial  period,  Chalmers   found  still  in  operation   in  the 


126  CONSTITUTIONAL   CONFLICT 

last  intercolonial  war,  which  was,  as  he  says,  "conducted  by 
Committees  of  Assembly."^ 

The  conduct  of  foreign  affairs  is  commonly  regarded  as  pre- 
eminently an  executive  function,  from  the  necessity  which  exists 
in  connection  with  it  of  concentrated  responsibility  and  dispatch. 
It  is  the  last  place  in  which  to  look  for  encroachment  by  the  repre- 
sentative body,  except  in  the  way  of  an  indirect  influence.  Yet 
we  find  the  Massachusetts  house  claiming  its  share  even  in  this 
department,  and  in  some  degree  exercising  direct  control,  certainly 
to  a  degree  at  times  which  divided  the  governor's  responsibility, 
if  it  did  not  entirely  relieve  him.  The  colony  was  concerned  with 
two  sorts  of  problems,  intercolonial  affairs  and  relations  with  the 
French  and  Indians,  whether  hostile  or  submissive. 

The  former  was  not  an  affair  of  much  consequence  in  the 
history  of  the  relations  between  executive  and  legislature.  It 
was  the  understood  thing  on  all  hands  that  the  court  (the  gov- 
ernor, council,  and  house  concurring)  was  the  proper  organ  of 
the  province  for  representing  it  in  dealings  with  other  colonies 
or  provinces.  The  governor  w'as  the  convenient  intermediary 
for  carrying  on  correspondence  with  other  governors,  but  final 
action  of  the  province  in  intercolonial  relations  required  the  formal 
sanction  of  the  general  court  (tacitly  given  to  preliminary  nego- 
tiations), expressed  in  an  act  or  resolve. 

Boundary  settlements,  the  most  copious  source  of  interco- 
lonial disputes,  were  conducted  by  commissioners  named  and 
instructed  by  the  general  court.  The  correspondence  connected 
therewith  was  carried  on  by  the  whole  court,  which  framed  and 
adopted  plans  of  accommodation,  sending  letters  in  the  name  of 
the  province,  passed  as  resolves.  This  practice  was  common 
among  the  provinces. - 

Minor  disputes  also,  such  as  concerned  intercolonial  impost 
or  tonnage  duties.^  were  the  subject  of  action  by  the  whole  court. 

Arrangements  for  defence  as  a  matter  for  intercolonial 
co-operation  lay  on  the  border  line  between  these  matters  of  cor- 
porate colonial  action,  requiring  the  expression  of  the  will  of 
the  province  by  its  legislature,  and  the  military  affairs  which  the 
governor  claimed  to  control    Thus  the  correspondence  was  usu- 


'  Chalmers,  Revolt,  II.  300,  301. 
^  Greene,  Provincial  Governor,  192. 
'E.  g.  Resolve  1701-2,  c.  31. 


IN    PROVINCIAL    MASSACHUSETTS.  12/ 

ally  carried  on  by  the  governor  acting  in  close  communication 
with  the  two  houses.  He  acted  really  as  the  spokesman  of  the 
house  and  council,  and  sometimes  the  letters  themselves  were 
written  by  the  general  court.  For  example,  in  1694-5  Lieuten- 
ant-governor Stoughton  carried  on  a  long  correspondence  with 
Connecticut,  requesting  the  co-operation  of  that  colony  in  the 
defence  of  Deerfield  and  the  Connecticut  River  region,  in  which 
correspondence  one  letter^  was  "by  command  of  the  Lt.-Gov., 
Council  and  Assembly ;"  and  in  1696  the  general  court  voted^ 
that  an  application  be  made  to  Connecticut  and  Rhode  Island 
for  help  in  the  war,  the  house  naming  one  of  the  commis- 
sioners for  carrying  on  the  negotiation,  and  expecting  the  gov- 
ernor and  council  to  name  the  other.  Also  in  refusing  the 
quota  of  Massachusetts  for  the  defence  of  New  York,  recom- 
mended by  the  home  government  and  requested  by  Fletcher, 
Stoughton  was  glad  to  fortify  himself  behind  the  resolves  of  the 
court,"  which  declared  that,  "we  humbly  ofifer"  that  the  assistance 
cannot  conveniently  be  rendered.  The  obvious  reason  for  this 
participation  of  the  house  in  the  latter  case  was  the  fact  that  the 
New  York  proposition  involved  the  spending  of  money,  which  the 
house  could  refuse.  In  the  former  case  the  participation  of  the 
general  court  in  the  application  for  aid  gave  the  additional  force 
that  the  request  was  backed  by  a  colony's  opinion  as  well  as  a  royal 
governor's  requisition,  and  hence  would  be  more  agreeable  and 
have  greater  likelihood  of  success. 

The  conduct  of  Indian  affairs  was  a  more  delicate  affair 
between  governor  and  house,  involved  so  closely  as  it  was  with 
the  conduct  of  military  affairs.  In  the  colonial  period  this  had 
been  a  function  of  the  governor  and  assistants,  acting  in  close 
communication  with  the  deputies ;  that  is,  the  business  had 
been  entirely  in  colonial  hands.  But  the  provincial  governor 
represented  an  entirely  different  principle.  It  was  still  very 
desirable  that  the  conduct  of  Indian  affairs  be  in  the  executive, 
where  prompt  action  could  be  taken  and  strict  responsibility  se- 
cured, but  with  a  changed  basis  for  the  governorship  that  would 
mean  that  its  control  had  passed  from  the  popular  to  the  prerog- 
ative body.     Was  it  to  be  an  Indian  policy  according  to  Massa- 

'  Resolve  1694-5.  c.  62. 
=  Resolve  1696-7,  c.  76. 
'Resolves  1695-6,  cc.  29,  38. 


128  CONSTITUTIONAL    CONFLICT 

chusetts  notions,  or  one  framed  on  imperial  lines,  with  ideals 
perhaps  entirely  different? 

The  governor  had  certain  points  in  his  favor.  It  was  the 
practice  among  the  other  provinces  that  treaties  should  be  made  by 
the  governor,  from  the  analogy  with  the  chief  of  the  executive 
in  the  home  government,  from  his  general  power  to  act  in  mat- 
ters not  otherwise  provided  for  by  the  charter  and  instructions, 
and  from  his  instruction  to  maintain  a  good  correspondence  with 
the  Indians.^  The  necessity  of  correspondence  with  other  prov- 
mces  also,  in  which  the  governor  alone  was  the  diplomatic  organ, 
favored  the  claim  of  the  governor  of  Massachusetts  to  this  func- 
tion. This  unification,  this  imperializing  of  the  Indian  problem, 
was  naturally  urged  in  consequence  of  the  manifest  advantage 
enjoyed  by  the  governor  of  Canada  in  the  long  conflict  between 
New  France  and  New  England,  through  his  ability  to  speak  for 
all  New  France  in  negotiations,  whether  in  offering  conciliatory 
propositions  or  in  making  threats,  while  the  resources  of  the 
English  colonies  were  at  the  command  of  so  many  colonies, 
having  perhaps  divergent  interests.  Some  recognition  of  this 
principle  was  found  in  the  practice  of  appointing  one  governor 
for  two  or  more  provinces  (e.  g.,  Dudley  for  Massachusetts  and 
New  Hampshire,  Bellomont  for  New  York,  New  Jersey,  Mas- 
sachusetts, and  New  Hampshire).  In  this  way  the  unified  action 
of  the  two  or  more  colonies  was  secured  in  a  measure  by  identity 
of  executives.  How  much  better  if  those  executives  could  speak 
for  their  provinces  without  fear  of  disavowal  by  their  assemblies. 
Also  in  dealing  with  the  Indians  the  greater  impressiveness  and 
influence  of  a  command  or  offer  coming  from  the  Great  Father 
in  England  speaking  through  his  ambassador,  the  governor,  was 
obvious,  as  compared  with  the  conclusions  arrived  at  by  an  assem- 
bly of  deputies,  some  of  whom  were  personally  and  perhaps  famil- 
iarly known  to  the  Indian  ambassadors. 

In  the  early  practice  of  the  province,  Indian  negotiations 
were  carried  on  by  the  governor  and  council,  holding  frequent 
communications  with  the  house.  The  governor,  acting  under 
advice  of  the  council,  wrote  letters  to  agents  among  the  Indians 
or  in  the  frontier  towns,  received  from  them  reports  of  their 
dealings,  sometimes  himself  visited  the  frontiers  and  by  previous 
appointment  conferred  with  the  chiefs,  making  treaties  of  more  or 

'  Greene,  Provincial  Governor,  108. 


IN    PROVINCIAL    MASSACHUSETTS.  1 29 

less  formality.  The  letters  which  he  received  he  usually  sent  down 
after  perusal  by  the  council,  for  the  house  to  read,  sometimes  on 
his  own  initiative,  often  at  the  request  of  the  house.  Likewise 
the  personal  negotiations  he  usually  reported  to  them  in  his 
speeches  to  the  assembly.  The  advice  of  the  house  was  fre- 
quently forthcoming,  was  always  received  in  good  part,  and  was 
often  followed,  because  of  its  expression  of  the  will  of  the 
body  whose  purse  could  make  war  or  end  it.  But  the  action  of 
the  house  was  only  occasional  and  spasmodic.  Joint  committees 
of  house  and  council  might  concert  measures  and  they  would 
have  weight  with  the  governor ;  representatives  of  the  two  houses 
frequently  at  his  own  request  accompanied  him  on  the  negotia- 
tions, to  give  added  dignity  to  the  occasion ;  but  he  it  was  and 
not  they  who  made  the  decisions,  except  in  the  last  resort,  where 
for  the  decision  of  war  and  peace  the  power  of  the  purse  could 
be  made  effective.  It  was  too  heavy  a  tool  to  use  in  most  mat- 
ters of  diplomacy. 

Phips  and  Stoughton  were  practically  at  one  with  house  and 
council  in  this,  as  in  most  other  matters.  There  was  therefore  no 
conflict  during  their  administrations.  Dudley  was  very  skilful  in 
his  dealings  with  the  Indians,  and  except  on  one  important  occasion 
(the  Borland  case,  1706)  his  devotion  to  the  service  of  the  province 
in  a  military  and  diplomatic  way  was  above  suspicion.  There  was 
for  this  reason  little  attempt  to  limit  his  discretion,  which  was  gen- 
erally recognized  as  wise  and  efficient.  His  manner  of  dealing  was 
exemplified  in  1710,  when,  on  February  3,  he  communicated  to 
the  council  certain  letters  about  dealing  with  the  Indians  through 
a  Norridgewock  prisoner.  By  advice  of  the  council  it  was 
decided  that  the  Indian  be  sent,  and  instructions  were  drawn 
up,  "and  the  said  letters  and  instructions  sent  down  to  the  Rep- 
resentatives for  their  perusal,  which  were  returned  with  their 
approbation  by  a  message."  Dudley  would  keep  the  house  in- 
formed what  he  was  doing  with  the  Indians,  but  it  was  for  their 
perusal  that  he  sent  the  papers ;  their  validity  was  not  dependent 
on  the  approbation  of  the  house,  for  the  next  day  a  change  was 
made  in  the  instructions,  and  no  mention  is  made  of  its  being 
communicated  to  the  representatives. 

In  Shute's  administration  the  house  took  a  higher  stand,  as- 
suming an  aggrieved  tone  in  regard  to  Indian  negotiations  which 

*9 


130  CONSTITUTIONAL   CONFLICT 

were  not  carried  on  according  to  their  plans.  We  even  find  a 
declaration  of  war  with  the  Indians  the  occasion  of  action  by  the 
house.  On  August  8,  1722/  Shute  announced  in  his  speech  that 
by  advice  of  the  council  he  had  declared  war  against  the  Eastern 
Indians  as  rebels  and  traitors.  On  August  10  the  house  sent  an 
address  to  Shute  declaring  that  they  thought  the  governor  and 
council  had  sufficient  reason  to  declare  the  Indians  rebels,  and 
agreeing  to  the  prosecution  of  a  vigorous  war. 

In  1721-2  a  strong  effort  was  made  to  engage  the  Iroquois 
in  offensive  alliance  against  the  Eastern  Indians.  On  September 
9,  1 72 1,  the  council  sent  a  message  desiring  to  "know  if  the  house 
design  to  join  in  the  care  of  sending  the  present  to  the  Five 
Nations  or  whether  they  will  leave  it  to  the  Board."  On  Novem- 
ber 13  the  representatives  replied.  Referring  to  the  present  of 
£500,  which  was  recommended  at  the  last  session,  it  says :  "altho 
the  House  was  not  then  advised  with  in  any  respect  concerning 
the  disposal  of  the  aforesaid  present,  as  they  justly  expected  to 
have  been,  nor  gave  any  order  therefor,  yet  they  think  it  requisite 
that  they  be  now  informed"  who  were  the  commissioners,  how 
they  were  instructed,  what  they  accomplished.  A  message  was 
sent  down  with  the  papers,  giving  an  account  of  the  transaction. 

Later,  in  1722,  the  house  made  an  advance.  In  response  to 
the  proposition  of  a  joint  committee,-  on  August  19,  that  a  present 
of  £500  be  sent  to  the  Indians  by  commissioners,  and  that  his  Ex- 
cellency be  desired  to  write  to  the  governor  of  New  York  to  pro- 
mote the  affair,  the  house  non-concurred,  but  proposed^  on  August 
16  a  present  of  £1000,  the  treaty  to  be  in  this  province,  commis- 
sioners to  "be  appointed  by  this  court,"  and  his  Excellency  to 
be  desired  to  be  present.  That  is,  the  house  tried  to  assume 
the  leading  part.  The  council  unanimously  non-concurred,  but  it 
practically  was  the  program  of  the  house  that  was  carried  out  in 
November.  The  place  of  the  conference  was  fixed  in  Boston, 
not  "at  Deerfield  or  elsewhere  in  Hampshire  as  His  Excellency 
shall  think  proper."  On  November  22  the  house  expressed*  its 
desire  that  what  was  to  be  proposed  to  the  delegates  of  the  Indians 
at  their  dismissal  be  prepared  by  the  whole  court.    The  governor's 

'  Court  Records,  XL  380. 
"Ibid,  383. 
'  Ibid,  393. 
*  Ibid,  414. 


IN    PROVINCIAL    MASSACHUSETTS.  I3I 

speech  was  sent  down  to  the  house,  which  repHed  that  "they  be- 
ing concerned  in  the  speech  now  proposed  to  be  delivered  to  the 
delegates  of  the  Six  Nations,  cannot  consent  to  the  same  as  it  is 
now  drafted  unless  where  the  word  'V  is  it  be  added  in  the  name 
of  the  General  Court  and  that  the  House  be  present  when  it  is 
delivered."    The  house  had  its  way. 

The  same  direct  control  was  maintained  by  the  house  during 
Dummer's  administration,  1723- 1728.  Their  position  was  recog- 
nized in  a  vote  of  the  council  on  June  25,  1723,^  (with  which,  of 
course,  the  house  concurred),  that  his  Honor  "be  desired  to  have 
the  assembly  sitting  when  any  overtures  of  a  pacification  with  the 
Eastern  Indians  come  under  consideration." 

For  negotiations  with  Indians,  hostile  or  friendly,  commis- 
sioners were  appointed  by  the  whole  court  and  their  instructions 
were  passed  concurrently.^  This  was  insisted  on  in  form  even  when 
the  action  was  really  taken  by  the  lieutenant-governor  and  council. 
For  example,  in  June,  1725,  both  houses  accepted  the  report^  of 
a  joint  committee  that  his  Honor  "by  the  advice  of  this  court  ap- 
point" two  commissioners.  The  house  sent  word  that  it  was  ready 
to  make  the  appointment  in  conjunction  with  the  board.  Dummer 
sent  word  to  the  house,  however,  "that  agreeable  to  the  advice  of 
the  court  he  had  appointed  Col.  Tailer  and  Col.  Stoddard  to  go 
upon  the  message  Eastward,  that  he  had  communicated  the  same 
to  the  Board  and  it  is  acceptable  to  them,  and  that  he  now 
communicates  it  to  the  House,  not  doubting  but  it  will  be 
acceptable  to  them  also."  On  the  question,  "Whether  the  advice 
of  the  Court  had  been  had  in  appointing  and  sending  down  two 
gentlemen  to  the  Eastward  which  His  Honor  has  nominated  for 
that  service/'  the  house  voted  in  the  negative,  and  it  was  then 
voted  concurrently  "that  His  Honor  the  Lieutenant-Governor 
be  desired  to  appoint"  the  same  two  men,  by  which  procedure 
the  house  gained  a  barren  precedent  and  nothing  more. 

In  late  August  and  early  September  of  1723  a  body  of  del- 
egates from  the  Six  Nations  came  to  Boston.  By  the  general 
court,  "Heads  for  the  Conferences"  were  drawn  up  and  accepted, 
the  Lieutenant-governor  was  "desired  to  speak  to  them  in  the 
name  of  the  Court"  and  that  "Mr.  Speaker  and  the  Committee  [of 

'  Court  Records,  XL  569. 

'  Court  Records,  XII.  20,  32,  180,  330.    August,  1723,  June,  Dec,  1724. 

^'Ibid,  421. 


152  CONSTITUTIONAL    CONFLICT 

the  two  houses  jointly]  be  of  advice  to  His  Honor  more  immedi- 
ately upon  any  emergency."  On  six  different  days  conferences 
were  held  between  the  delegates  and  the  Lieutenant-governor, 
the  whole  court  being  present.  Answers  to  proposals  of  the  dele- 
gates were  digested  by  a  joint  committee  and  accepted  by  the 
whole  court,  and  the  minutes  of  the  conferences  were  signed  by 
the  speaker  for  the  house,  by  the  secretary  for  the  council,  and  by 
the  lieutenant-governor.^ 

A  dispute  arose  on  the  conclusion  of  this  conference  as  to 
the  proper  seal  to  be  affixed.-  The  lieutenant-governor's  private 
seal  having  been  placed  on  a  belt  of  wampum  presented  to  the 
delegates,  the  house  resolved  that  it  be  defaced  and  that  the  seal 
of  the  province  be  affixed.  The  council  non-concurred,  and  de- 
sired the  house  to  v/ithdraw  the  resolution,  the  governor  being 
keeper  of  the  seal.  But  the  house  declared  that  "the  affixing  a 
private  seal  contrary  to  the  agreement  of  a  committee  was  a  high 
affront  and  indignity  to  them."'  They  later  justified  themselves  on 
the  ground  that  less  authority  in  the  eyes  of  the  French  and  In- 
dians would  attach  to  a  treaty  bearing  the  private  seal  of  the  lieu- 
tenant-governor than  to  one  with  the  seal  of  the  province,  and 
said  that  it  was  for  this  reason,  and  not  out  of  disrespect  to  the 
lieutenant-governor  that  they  had  entered  this  protest.^ 

At  the  end  of  1725  there  was  a  conference  of  Eastern  Indian 
delegates  at  Boston  for  concluding  a  general  pacification.  On 
November  11  Dummer  sent  word  to  the  house  that  the  Indian 
delegates  were  present  and  that  if  the  house  or  any  of  them  should 
incline  to  be  present  it  would  be  acceptable.*  Upon  the  house  ask- 
ing whether  this  was  "to  be  of  advice  or  spectators  only,"  Dum- 
mer replied  that  the  making  of  war  or  peace  with  the  Indians  be- 
longed to  the  lieutenant-governor  with  the  advice  of  the  council, 
by  the  77th  instruction,  but  that  he  would  be  ready  on  occasion  to 
receive  the  advice  of  the  house  of  representatives.  The  next  day 
the  house  declared  its  "earnest  desire"  to  proceed  in  the  same 
method  as  in  the  treaty  with  the  Six  Nations  in  1723.  Dummer 
found  "a  great  difference"  between  the  two  cases,  the  treaty  in 
1723  being  with  his  Majesty's  subjects,  friends  of  this  govern- 

^  Court  Records,  XII.  29-54,  passim. 
'Hutchinson.  II.  269.  270. 
=■  Court  Records,    XII.  50. 
•Court   Records,    XIII.    11. 


IN    PROVINCIAL    MASSACHUSETTS.  I35 

ment  and  always  at  peace  with  us,  the  design  of  the  treaty  being 
to  obtain  assistance,  (as  it  were,  an  inter-colonial  affair)  ;  "whereas 
the  Eastern  Indians  are  His  Majesty's  enemies  and  in  a  state  of 
rebellion  and  now  sueing  for  peace.  In  the  mean  time  I  am  very 
desirous  that  both  Houses  should  be  present  at  the  conference." 
On  the  I2th  of  November  a  conference  was  held  "between  His 
Honour  the  Lieutenant-Governor  and  the  Indian  delegates  in  the 
Council  Chamber,  the  two  houses  being  present."^  On  November 
15  Dummer  informed  the  house  that  he  had  commissioned  several 
gentlement  to  treat  with  the  Indians,  including  the  speaker  and 
two  other  members  of  the  house,  and  though  the  house  asserted  its 
earnest  desire  that  "the  whole  Court,  who  are  the  grand  Council 
of  the  Province  may  be  of  advice  to  His  Honour"  as  is  usual  and 
not  "inconsistent  with  His  Honour's  undoubted  power  to  make 
peace  or  war,"  yet  the  lieutenant-governor  would  only  say  that  he 
should  "always  be  ready  to  receive"  the  advice  of  the  house.  Re- 
garding the  method  of  treating  by  commissioners  as  "more  agree- 
able to  the  method  of  former  treaties  than  to  have  the  whole  Court 
present  .  .  .as  well  as  upon  many  other  accounts  more  proper 
and  convenient"  he  held  no  more  conferences  in  the  presence  of 
the  whole  court,  but  conducted  the  negotiation  through  commis- 
sioners, who  were,  however,  instructed  by  the  concurrent  action 
of  the  two  houses.  The  treaty,  when  negotiated,  was  agreed  to  by 
the  two  houses  with  some  alteration  by  mutual  accommodation, 
and  on  December  15  "in  presence  of  the  whole  Court  the  pacifica- 
tion was  completed  and  signed."-  At  the  exchange  of  ratifications 
in  the  following  July  the  lieutenant-governor  was  accompanied  to 
the  eastward  by  a  quorum  of  the  council,  and  at  his  suggestion  by 
ten  of  the  representatives,  appointed  by  them  for  the  purpose. 

The  regulation  of  Indian  affairs  in  time  of  peace  was  assumed 
entirely  by  the  general  court.  They  were  regarded  as  subjects 
of  the  king,  in  an  extraordinary  condition  it  is  true,  but  under  the 
legislative  power  of  the  province,  like  any  other  class  of  inhabit- 
ants. But  there  was  also  a  special  reason  for  their  affairs  being 
attended  to  by  the  general  court  rather  than  by  the  governor  and 
council.  The  system  of  truck-houses  at  frontier  posts,  where  the 
trade  with  the  Indians  (now  the  chief  concern  of  the  white  in  his 
relation  with  the  redskin)  was  carried  on  by  public  officers,  elected 

'Court  Records,  XIII.   16. 
^Ibicl,  81. 


154  CONSTITUTIONAL   CONFLICT 

by  the  court,  was  supported  from  funds  appropriated  by  the  gen- 
eral court,  and  as  being  "an  affair  of  money"  was  pecuHarly  sub- 
ject to  the  influence  of  the  house. 

Thus  the  house  is  found  playing  a  part  in  the  fields  of  mil- 
itary and  diplomatic  policy,  far  beyond  what  was  contemplated  in 
the  charter,  but  subject  to  very  substantial  limitations.  It  wages 
war,  advising  and  sometimes  dictating  the  precise  course  to  be 
followed  by  the  executive.  It  is  enabled  to  gain  this  control  over 
the  governor  by  the  fact  that  it  possesses  the  sinews  of  war,  which 
it  may  grant  or  withhold.  The  more  deUcate  process  of  diplo- 
macy is  not  so  immediately  subject  to  the  application  of  this  heavy 
tool,  and  here  the  governor  enjoys  a  considerable  degree  of  inde- 
pendent discretion.  But  his  independence  is  largely  a  matter  of 
immediate  convenience  to  the  house,  which  can  not  of  itself  con- 
veniently perform  executive  functions.  His  seemingly  independ- 
ent action  in  always  conditioned  by  the  necessity  of  the  tacit  con- 
sent of  the  house ;  for  if  he  neglects  this  he  will  be  brought  sooner 
or  later  to  recognize  that  the  body  of  government  that  holds  the 
purse-string  holds  the  essentials  of  sovereignty. 


t 


APPENDIX. 

I.    Educational  Institutions  Attended  by  the  Author. 

Waterville   (Maine)    High   School,  1890-1894. 
Coburn  Classical  Institute,  1894-1895. 
Colby  College,  1895-1899. 
Columbia   University,    1900-1903. 


11.    Degrees  and  Appointments. 

A.    B.,    Colby    College,     1899. 

A.  M.,  Columbia  University,   1901. 

Instructor,   Coburn  Classical   Institute,   1899-1900. 

University    Fellow    in    American    History,    Columbia    Uni- 
versity,   1902-1903. 

Instructor  in  American  History  and  Political  Science,  Ohio 

State    University,    1903-1905. 
Assistant    Professor    of    American    History    and    Political 

Science,    Ohio    State    University,    1905. 

(135) 


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